^:.v..f: Cornell University Law Library The Moak Collection PURCHASED FOR The School of Law of Cornell University And Presented February 14, 1893 IN HEnORY OF JUDGE DOUGLASS BOARDMAN FIRST DEAN OF THE SCHOOL By his Wife and Daughter A. M. BOARDMAN and ELLEN D. WILLIAMS Cornell University Library The original of this bool< is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924019947633 COMPILATION o* SENATE ELECTION CASES FROM 1789 to 1885. sx GEORGE S. TAFT, CLERK TO COMMITTEE ON PRIVILEGES AND ELECTIONS, U. S. SENATE. WASHUJTGTOF: GOVERNMENT FEINTING OFFICE. 1885. PREFACE. Two compilatioDS of Senate election cases have been made, one by Messrs. Clarke and Hall, consisting of cases from 1789 to 1834, and one by Mr. D. W. Bartlett, consisting of cases from 1834 to 1865. Each of these compilations made up but a small part of vol- umes containing in addition the contested-election cases in the House of Eepresenta- tives for the respective periods. This volume contains the Senate cases from 1789 to December, 1885. I have not made use of the early compilations referred to, for the reason that, inasmuch as this volume is confined to. Senate cases and so more liinited in Its scope, I have been able to take up more cases of minor importance than are re- ported in the early compilations, and to, include in the important cases more of the matter comprising their history than is found in the reports of the same cases in the early compilations. The volume contains not only contested cases, strictly speaking, but all cases in which the right to a seat of any person who has presented credentials has been questioned in such a manner that the Senate has deemed proper to investigate or to discuss the ques- tion. ' ■ The general plan in inaking up the cases has been to give the reports of committees, majority and minority, in all cases in which there were reports; transcripts from the journals of the proceedings of the Senate relating to them; and Inserted references to the debates of each day. In those cases in which there were no reports, extracts from debates have usually been given. In a few of the early cases, in which the reported debates are brief, the whole debate is given. Each case is accompanied by a head-note stating the points in question and the action of the Senate. I have separated into a class by themselves those cases involving the question of the power of governors of States to fill vacancies; and in connection with these cases is given a list, prepared from the credentials on file, of all the appointments of Senators by gov- ernors. It was my original purpose to make a separate class of the expulsion cases, and to make certain other divisions into classes, but as certain of the cases involve several different questions, it seemed better ta arrange them all, with the exception of the class first referred to, chronologically. An introduction contains extracts from .the debates in the Federal convention of 1787, taken from the Madison Papers, on such parts of the Constitution as relate to the election and qualifications of Senators; extracts from the Constitution relating to the same; and the act of July 25, 1866, relating to the election of Senators. GEOEGE S. TAFT. Washingt6n, December 1, 1885. INTRODTJOTIOlSr. EXTRACTS FROM TDE DEBATES Il!f THE FEDERAL CON- VENTION. PORTIONS OF THE EEPOET OF THE COMMITTEE OF DETAIL, MADE AUGUST 6, 1787, RE- LATING TO THE ELECTION AND QUALIFICATIONS OF SENATORS. Art. v. — Sect. 1. The Senate of the United States shall be chosen by the legislatures of the several States. Each legislatures shall choose two members. Vacancies may be supplied by the executive until the next meeting of the legislature. Each member shall have one vote. Sect. 2. The Senators shall be chosen for six years; but immediately after the first election they shall be divided, by lot, into three classes, as nearly as may be, numbered one, two, and three. The seats of the members of the first class shall be vacated at the expiration of the second year; of the second class at the expiration of the fourth year; of the third class at the expiration of the sixth year; so that a third part of the members may be chosen every second year. Sect. 3. Every member of the Senate shall be of the age of thirty years at least; shall have been a citizen in the United States for at least four years before his election; and shall be, at the time of his election, a resident of the State for which he shall be chosen. Sect. 4. The Senate shall choose its own President and other .oflcers. Art. VI. — Sect. 1. The times, and places, and manner of holding the elections of the members of each House shall be prescribed by the legislature of each State; but their provisions concerning them may, at any time, be altered by the Legislature of the United States. Sect. 2. The Legislature of the United States shall have authority to establish such uniform qualifications of the members of each House with regard to property as to the said legislature shall seem expedient. Sect. 3. In each House a maj ority of the members shall constitute a quorum to do busi- ness; but a smaller number may adjourn from day to day. Sect. 4. Each House shall be the judge of the elections, returns, and qualifications of its own members. Sect. 5. Freedom of speech and debate in the legislature shall not be impeached or ques- tioned in any courtor place out of the legislature; and the members of each House shall, in all cases, except treason, felony, and breach of the peace, be privileged from arrest dur- ing their attendance at Congress and in going to and returning from it. Sect. 6. Each House may determine the rules of its proceedings; Inay punish its mem- bers for disorderly behavior; and may expel a member. Sect. 7. The House of Representatives, and the Senate when it shall be acting in a legislative capacity, shall keep a journal of their proceedings; and shall, from time to lime, publish them; and the yeas and nays of the members of each House on any ques- tion shall, at the desire of oncyfifth part of the members present, be entered on the Journal. _ Sect. 8. Neither House, without the Consent of the other, shall adjourn for more than three days, nor to any other place than that at which the two Houses are sitting. But this regulation shall not extend to the Senate when it shall exercise the powers men- tioned in the article. Sect. 9. The members of each House shall be ineligible to, and incapable of holding, any office under the authority of the United States during the time for which they shall respectively be elected; and the membersof the Senate shall be ineligible to, and incapa- ble of holding, any such office for one year afterwards. Sect. 10. The members of each House shall receive a compensation for their services, to be ascertained and paid by the State in which they shall be chosen. DEBATES. . Thursday, August 9, 1787.^ Article V, section 1, was then taken up. Mr. Wilson objected to vacancies in the Senate being supplied by the executives of the States. It was unnecessary, as the legislatures will meet so frequently. It removes the appointment too far from the people, the executives in most of the States being elected by the legislatures. As he had always thought the app'oint^nent of the executive by the VI SENATE ELECTION CASES. legislative department wrong; so it was still more so that the executive should elect into the legislative department. . , Mr. Randolph- thought it necessary, in order to prevent inconvenient chasms in tne Senate. In some States the legislatures meet but once a year. As the Senate will have more power, and consist of a smaller number than the other House, vacancies there wiM be of more consequence. The executives might be safely trusted, he thought, with the appointmeiit for so short a time. . , Mr. Ellswobth. It is only said that the executive maj/ supply vacancies. When tne legislative meeting happens to be near the power will not be exerted. As there will be but two members from a State vacancies may be of great moment. Mr. Williamson. Senators may resign or not accept. This provision is therelore ab- solutely necessary. On the question for striking out "vacancies shall be supplied by the executives — Pennsylvania, ay, 1; New Hampshire, Masspxjhusetts, Connecticut, New Jersey, Vir- ginia, North Carolina, South Carolina, Georgia, no, 8; Maryland, divided. Mr. Williamson moved to insert after "vacancies shall be supplied by the execu- tives," the words, "unless other provisions shall be made hy the legislature" (of the State). ' ■ r C14. t Mr. Ellswokth. He was willing to trust the legislature or the executive of a State, but not to give the former a discretion to refer appointments for the Senate to whom they pleased. On the question on Mr. Williamson's motion — Maryland, North Carolina, South Carolina, Georgia, ay, 4; New Hampshire, Massa- chusetts, Connecticut, New Jersey, Pennsylvania, Virginia, no, 6. Mr. Madison, in order to prevent doubts whether resignations could be made by Sen- ators, or whether they could refuse to accept, moved to strike out the words after "vacan- cies," and insert the words, "happening by refusals to accept, resignations, or otherwise, may be supplied by the legislature of the State in the representation of which such va- cancies shall happen, or by the executive thereof until the next meeting of the legisla- ture." Mr. GouvERNEUB MoBEiS. This is absolutely necessary ; otherwise, as members chosen, into the Senate are disqualified from being appointed to any ofiioe by section 9 of this arti- cle, it will be in the power of a legislature, by appointing a man a Senator against his consent, to deprive the United States of his services. The motion of Mr. Madison was agreed to nem. con. Mr. Randolph called for a division of the section, so as to leave a distinct question on the last words, "each member shall have one vote." ******* On the question on the first section, down to the last sentence — New Hampshire, Connecticut, New Jersey, Delaware, Maryland, Virginia, Georgia, ay, 7; Massachusetts, Pennsylvania, North Carolina, no, 3; South Carolina, divided. (In the printed Journal, Pennsylvania, ay.) * * * «■ « « * Article V, section 2, was then taken up. Mr. Gouverneur Morris moved to -insert, after the words, " immediately after," the following: "they ?hall be assembled in consequence of," which was agreed to nem. con., as was then the whole section. Article V, section 3, was then taken up. Mr. Gouverneur Morris moved to insert fourteen, instead of four years' citizenship as a qualification for Senators; urging the danger of admitting strangers into our public councils. Mr. Pihckney seconded him. Mr. Ellsworth was opposed to the section, as discouraging meritorious aliens from emigrating to this country. Mr. PiNCKNEY. As the Senate is to have the power of making treaties and managing our foreign affairs, there is peculiar danger and impropriety in opening its door to those who have foreign attachments. Hequotedthejealousy of the Athenianson this subject, who made it death for an.y stranger to intrude his voice into their legislative proceed- ings. Colonel Mason highly approved of the policy of the motion. Were it not thatmanv not natives of this country had acquired great credit during the Revolution, he should be for restraining the eligibility into the Senate to natives. Mr. Madison was not averse to some restrictions on'this subject, but could never agree to the proposed amendment. He thought any restriction, however, in the Consti- tution, unnecessary and improper — unnecessary, because the national Legislature is to have the right of regulating naturalization, and can by virtue thereof fix diflerent periods of residence as conditions of enjoying different privileges of citizenship; improper, be- INTRODUCTION. Vir cause it will give a tincture of illiberality to the Constitution; because it will put it cout of the power of the national Legislature, even by special acts of naturalization, to confer the lull rank of citizens on meritorious strangers, and because it will discour- age the most desirable class of people from emigrating to the United States. Should the proposed Constitution have the intended eflect of giving stability and reputation to our -Government, great numbers of respectable Europeans, men who love liberty and wish to partake its blessings, will be ready to transfer their fortunes hither. All such would feel the mortification of being marked with suspicious incapacitations, though they should not covet the public honors. He was not apprehensive .that any dangerous number of strangers would be appointed by the State legislatures if they were left at liberty to do so, nor that foreign powers would make use of strangers as instruments for their pur- poses. Their bribes would be expended on men whose circumstances wouldrather stifle than excite jealousy and watchfulness in the public. Mr. Butler was decidedly opposed to the admission of foreigners without a long resi- dence in the country. They bring with them not only attachments to other countries, but ideas of government so distinct from ours that in every point of view they are dan- gerous. He acknowledged that if he himself had been called into public life within a short time after his coming to America, his foreign habits, opinions, and attachments would have rendered him an improper agent in public affairs. He mentioned the great strictness observed in Great Britain on this subject. Dr. Franklin was not against a reasonable time, but should be very sorry to see any- thing like illiberality inserted in the Constitution. The people in Europe are friendly to this country. Even in the country with which we have been lately at war we have now and had during the war a great many friends, not only among the people at large, but in both houses of Parliament. In every other country in Europe all the people arc our friends. We found in the course of the Eevolution that many strangers served us faithfully, and that many natives took part against their country. When foreigners, after looking about for some other country inwhich they can obtain more happiness, give a preference to ours, it is a proof of attachment which ought to excite our confidence and affection. Mr. Eandolph did not know but it might be problematical whether emigrations to this country were; on the whole, useful, or not, but he could never agree to the motion for disabling them, for fourteen years, to participate in the public honors. He reminded the convention of the language held by our patriots during the Revolution, and^the principles laid down in all our American constitutions. Many foreigners may have fixed their foiftunes among us under the faith of these invitations. All persons under this description, with all others who would be affected by such a regulation, would enlist them- selves under the banners of hostility to the proposed system. He would go as far as seven years, but no farther. Mr. Wilson said he rose with feelings which were perhaps peculiar; mentioning the circumstance of his not being a native, and the possibility, if the ideas of some gentle- men should be pursued, of his being incapacitated from hblding a place under the very Constitution which he had shared in the trust of making. He remarked the illiberal complexion which the motion would give to the system, and the effect which a good sys- tem would have in inviting meritorious foreigners among us, and the discouragement and mortification they must feel from the degrading discrimination now proposed. He had himself experienced this mortification. On his removal into Maryland he found himself, from defect of residence, under certain legal incapacities which never ceased to produce chagrin, though he assuredly did not desire, and would not have accepted, the offices to which they related. To be appointed to a place may be a matter of indiffer- ence. To be incapable of being appointed is a circumstance grating and mortifying. Mr. GouvEENEUE MOEEIS. The lesson we are taught is that we should be governed as much by our reason and as little by our feelings as possible. What is the language of reason on this subject? That we should not be polite atthe expense of prudence. There was a moderation in all things. It is said that some tribes of Indians carried their hos- pitality so far as to offer to strangers their wives and daughters. Was this a proper model for us? He would admit them to his house, he would invite them to his table, would provide for them comfortable lodgings, but would not carry the complaisance so far as to bed them with his wife. He would let them worship at the same altar, but did not choose to make priests of them. He ran over the privileges which emigrants would enjoy among us, though they should be deprived of that of being eligible to Ihe great offices of Government; observing that they exceeded the privileges allowed to for- eigners in any part of the world; and that as every society, from agreat nation down to a club, had the right of declaring the conditions on which new members should be admit- ted, there could be no rocJin for complaint. As to those philosophical gentlemen, those citizens of the world, as they called themselves, he owned he did not wish to see any of them in our public council?. He would not trust them. The men who can shake off VIII SENATE ELECTION CASES. their attachments to their own country can never love any other. These attachments are the wholesome prejudices which uphold all governments. Admit a Frenchman into your Senate, and he will study to increase thecommerce of France; an Englishman, and he will teel an equal bias in favor of that of England. It has been said that the legisla- tures will not choose foreigners, at least improper ones. There was no knovv'ing what legislatures would do. Some appointments made by them proved that everything ought to be apprehended from the cabals practiced on such occasions. He mentioned the the case of a foreigner who left this State in disgrace, and worked himself into an ap- pointment from another to Congress. On the question on the motion of Mr. Gouverneur Morris to insert fourteen in place of four years — New Hampshire, New Jersey, South Carolina, Georgia, ay, 4; Massachusetts, Con- necticut, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, no, 7. . , i On thequestion for thirteen years, moved by Mr. Gouvprneur Morris, it was negatived, as above. On ten years, moved by General Pinckney, the votes were the same. Dr. Franklin reminded the convention that it did not follow, from an omission to in- sert the restriction in the Constitution, that the persons in question would be actually chosen into the legislature. Mr. EUTLEDGE. Seven years of citizenship have been required for the House of Kep- resentatlves. Surely a longer time is requisite for the Senate, which will have more power. Mr. Williamson. It is more necessary to guard the Senate in this case than the othei House. Bribery and cabal can be more easily practiced in the choice of the Senate, which is to be made by the legislatures, composed of a few men, than of the Hoiise of Eepre- sentatives, who will be chosen by the people. ) Mr. Kandolph will agree to nine years, with the expectation that it will be reduced to seven, if Mr. Wilson's motion to reconsider the vote fixing seven years for the House ol Representatives should produce a reduction of that period. On the question for nine years — New Hampshire, New Jersey, Delaware, Virginia, South Carolina, Georgia, ay, 6 Massachusetts, Connecticut, Pennsylvania, Mainland, no, 4; North Carolina, divided. The term "resident" was struck out, and "inhabitant" inserted nem. con. Article V, section 3, as amended, was then agreed tonem. con. (198). Article V, section 4, was agreed to nem. con. Article VI, section 1, was then taken up. Mr. Madison and Mr. Gouverneur Morris moved to strike out "each House," and to insert ' ' the House of Representatives ' ' ; the right of the legislatures to regulate the times and places, &c., in the election of Senators being involved in the right of appointing them; which was disagreed to. ^ A division of the question being called for, it was taken on the first part down to ' ' but their provisions concerning, ' ' &c. The first part was agreed to nem. eon. Mr. Pinckney and Mr. Eutledge moved to strike out the remaining part, viz, ' ' but their provisions concerning them may at any time be altered by the Legislature of the United States. ' ' The States, they contended, could and must be relied on in such cases. Mr. GoEHAM. It would be as improper to take this power from the national Legisla- ture as to restrain the British Parliament from regulating the circumstances of elections, leaving this business to the counties themselves. Mr. Madison. The necessity of a general government supposes that the State legisla- tures will sometimes fail or refuse to consult the common interest at the expense of their local convenience or prejudices. The policy of referring the appointment of the House of Representatives to the people, and not to the legislatures of the States, supposes that the result will be some-v«^hat influenced by the mode. This view of the question seems to decide that the legislatures of the States ought not to have the uncontrolled right of regulating the times,, places, and manner of holding elections. These' were words of great latitude. It was impossible to foresee all the abuses that might be made of the dis- cretionary power. Whether the electors should vote by ballot, or vivo, voce, should assemble at this place or that place, should be divided into districts or all meet at one place, should all vote for all the Representatives or all in a district vote for a number allotted to the district — ^these, and many other points, would depend on the legislatures, and might materially affect the appointments. Whenever the State legislatures had a favorite measure to carry they would take care so to mold their .regulations as to favor the candidates they wished to succeed. Besides, the inequality of the representation in the legislatures of particular States would produce a like inequality in their representa- tion in the national Legislature, as itwas presumable that the counties having the power in the f )rmer case ;would secure it to themselves in the latter. What danger could there INTRODUCTION. IX be in giving a sontrolUng power to the national Legislature? Of whf in was it to consist? First, of a Senate to be chosen by the State legislatures. If the latter, therefore, could be trusted, their representatives could not be dangerous. Secondly, of Representatives elected by the same people who elect the State legislatures. Surely, then, if confidence is due to the latter, it must be due to the former. It seems as improper in principle, though it might be less inconvenient in practice, to give to the State legislatures this great authority over the election of the Representatives of the people in the general legis- lature as it would be to give to the latter a like power over the election of their repre- sentatives in the State legislatures. Mr. King. If this power be not given to the national Legislature, their right of judg- ing of the returns of their members may be frustrated. No probability has been sug- gested of its being abused by them. Although this scheme of erecting the General Government on the authority of the State legislatures has been fatal to the Federal estab- lishment; it would seem as if many gentlemen still foster the dangerous idea. Mr, Gouverneur Morris observed that the States might make false returns, and then make no provisions for new elections. Mr. Sherman did not know but it might be best to retain Che clause, though he had himself sufScient confidence in the State legislatures. The motion of Mr. Pinckney and Mr. Rutledge did not prevail. The word "respectively" was inserted after the word "State." On the motion of Mr. Read, the word "their" was struck out, and "regulations in such cases " inserted, in place of "provisions concerning them " — the clause then read- ing, " but regulations, in each of the foregoing cases, may, at any time, be made or altered by the Legislature of the United States." This was meant to give the national Legisla- ture a power not only to alter the provisions of the States, but to make regulations in case the States should fail or refuse altogether. Article VI, section 1, as thus amended, was agreed to nem. con. (199). Adjourned. Friday, August 10, 1787. [On the question of agreeing to section 2, Article VI, the ayes were 3, the noes 7. The debate is here omitted.] [Section 3 of Article VI was amended and agreed to. The debate is here omitted.] Sections 4 and 5 of Article VI were then agreed to nem. con. Mr. Madison observed thai the right of expulsion (Article VI, section 6) was top im- portant to be exercised by a bare majority of a quorum, and in emergencies of faction might be dangerously abused. He moved that "with the concurrence of two-thirds" might be inserted between "may" and " expel." Mr. Randolph and Mr. Mason approved the idea. Mr. GouvBENEUE MoEEis. This power may be safely trusted to a majority. To re- quire more may produce abuses on the side of the minority. A few men, from factious motives, may keep in a member who ought to be expelled. Mr. Carroll thought that the concurrence of two-thirds, at least, ought to be required. On the question requiring two-thirds in cases of expelling a member, 10 States were in the affirmative; Pennsylvania, divided. Article VI, section 6, as thus amended, was then agreed to nem. eon. (202). [Section 7 of Article VI was amended and agreed to. The debate is here omitted. J Satueday, August 11, 1787. [Section 8 of Article VI was amended and agreed to. The debate is here omitted.] Tuesday, August 14, 1787. In convention.— Atticle VI, section 9, was taken up. Mr. Pinckney argued that the making the members ineligible to offices was degrading to them, and the more improper as their election into the legislature implied that they had the confidence of the people; that it was inconvenient, because the Senate might be supposed to contain the fittest men. Bfe hoped to see that body become a school of public ministers, a nursery of statesmen. That it was impolitic, because the legislature would cease to be a magnet to the first talents and abilities. He moved to postpone the section, in order to take up the following proposition, viz: "The members of each House shall be incapable of holding any office undet the United Stijtes lor which they, or any others for their benefit, receive any salary,, fees, or emolu- ments of any kind; and the acceptance of such office shall vacate their seats respectively. ' ' General Mifflin seconded the motion. Colonel Mason ironically proposed to strike out the whole section, as a more effectual expedient for encouraging that exotic corruption which might not otherwise thrive so well in the American soil; for completing that aristocracy which was probaMy in the X SENATE ELECTION CASES. contemplation of some among us; and for inviting into the legislative service those gpn- erous and benevolent characters who will do justice to each other's merit by carving out offices and rewards for it. In the present state of American morals and manners, lew friends, it may be thought, will be lost to the plan by the opportunity of giving pre- miums to a mercenary and depraved ambition. Mr. Meeceb. It is a first principle in political science that whenever the rights of property are secured an aristocracy will grow out of it. Elective governments also neces- sarily become aristoorafic, because the rulers, being few, can and will draw emoluments for themselves from the many. The goveriiments of America will become aristocracies. They are so already. The public measures are calculated for the benefit of the governors, not of the people. The people are dissatisfied, and complain. They change their rulers, and the public measures are changed, but it is only a change of one scheme of emolu- ment to the rulers for another. The people gain nothing by it but an addition of insta- bility and- uncertainty to their other evils. Governments can only be maintained by force or influence. The executive has not force; deprive him of influence by rendering the members of the legislature ineligible to executive offices, and he becomes a mere phantom of authority. The aristocratic part will not even let him in for a share of the plunder. The legislature must and will be composed of wealth and abilities, and the people wil 1 be governed by a junto. The executive ought to have a council, being members of both Houses. Without such an influence, the war will be between the aristocracy and the people. He wished it to be between the aristocracy and the executive. Nothing else can protect the people against those speculating legislatures which are now plundering them throughout the United States. Mr: Gerry read a resolution of the legislature of Massachusetts, passed before the act of Congress recommending the convention, in which her deputies were instructed not to depart from the rotation established in the fifth article of the Confederation, nor to agree, in any case, to give to the members of Congress a capacity to hold offices under the Gov- ernment. This, he said, was repealed, in consequence of the act of Congress, with which theState thought it proper to comply in an unqualified manner. The sense of the State, however, was still the same. He could not think, with Mr. Pinckney, that the di quali- fication was degrading. Confidence is the road to tyranny. As to ministers and ambassa- dors, few of them were necessary. It is the opinion of a great many that they ought to be discontinued on our part, that none may be seat among us, and that source of influ- ence shut up. If the Senate were to appoint ambassadors, as seemed to be intended, they will multiply embassies for their own sakes. He was not so fond of those produc- tions as to wish to establish nurseries for them. If they are once appointed, the House of Eepresentafives will be obliged to provide salaries for them, whether they approve of the measures or not. If men will not serve in the legislature without a prospect of such offices, our situation is deplorable indeed. If our best citizens are actuated by such mer- cenary views, we had better choofe a single despot at once. It will be more easy to sat- isfy the rapacity of one than of many. According to the idea of one gentleman (Mr Mercer), our Government, it seems, is to be a government of plunder. In that case, it certainly would be prudent to have but one, rather than many, to be "employed in it. We cannot be too circumspect in the formation of this system. It will be examined on all sides, and with a very suspicious eye. The people who have been so lately in arms against Great Britain for their liberties will not easily give them up. . He lamented the evils existing, at present, under our governments, but imputed them to the faults of those in office, not "to the people. The misdeeds of the former will produce a critical attention to the opportunities afforded by the new system to like or greater abuses. As it now stands, it is as complete an aristocracy as ever was franied. If great powers should be given to the Senate, we shall be governed in reality by a junto, as has been apprehended. He remarked that it would be very differently constituted from Congress. In the first place, there would be but two deputies from each State; in Congress there may be seven, and are generally five. In the second place, they arc chosen for six years; those of Congress annually. In the third place, they are not subject to recall; those of Congress are. And, finally, in Congress nine States are necessary for all great purposes; here eight persons will suffice. Is it to be presumed that the people will ever agree to such a system? He moved to render the members of the House of Representatives, 3;^ well as of the Senate, ineligible, not pnly during, but for one year after the expiration of, their terms. If it should be thought that this will injure the legislature, by keeping out of it men of abilities, who are willing to serve in other offices, it may be required, as a, qualification for other offices, that the candidate shall have served a certain time in the legislature. Mr. GouvEENEUR MORBIS. Exclude the officers of the Army and Navy, and you form a baud having a different interest from, and opposed to, the civil power. You stimulate them to despise and reproach those '"talking lords who dare not lace Uie foe." Let this spirit be roused at the end of a war, before your troops shall have laid down their arms INTRODUCTION. XI and, though the civil authority be "intrenched in parchment to the teeth," they will cut their way to it. He was against rendering the members of the legislature ineligi- ble to offices. He was for rendering them eligible again, after having vacated their seats by accepting office. Why should we not avail ourselves of their services if the people choose to give them their confidence ? There can be little danger of corruption, either among the people or the legislatures, who are to be the electors. If they say, We see their merits, we honor the men, we choose to renew our confidence in them, have thej' not a right to give them a preference, and can they be properly abridged of it? Mr. Williamson introduced his opposition to the motion by referring to the question concerning "money bills." That clause, he said, was dead. " Its ghost, he was afraid, would, notwithstanding, haunt us. It had been a matter of couscience with him to insist on it as long as there was hope of retaining it. He had swallowed the vote of rejection with reluctance. He could not digest it. All that was said on the other side was that the restriction was not convenient. We have now got a house of lords which is to originate money bills. To avoid another inconvenience, we are to have a whole legisla- ture at liberty to cut out offices for one another. He thought a self-denying ordinance for ourselves would be more proper. Bad as the Constitution has been made by expung- ing the restriction on the Senate concerning money bills, he did not wish to make it worse by expunging the present section. He had scarcely seen a single corrupt measure in the legislature of North Carolina which could not be traced up to office-hunting. Mr. Shebman. The Constitution should lay as few temptations as possible in the way of those in power. Men of abilities will increase as the country grows more popu- lous, and as the means of education are more difi'used. Mr. PiNCKNEY. No State has rendered the members of the legislature ineligible to offices. In South Carolina the judges are eligible into the legislature. It cannot be supposed, then, that the motion wiU be offensive to the people. If the State constitu- tions Should be revised, he believed, restrictions of this sort would be rather diminished than multiplied. Mr. Wilson could not approve of the section as it stood, and could not give up his judg- ment to any supposed objections that might arise among thepeople. He considered him- self as acting and responsible for the welfare of millions not immediately represented in this House. He had also asked himself the serious question, what he should say to his constituents in case they should call upon him to tell them why he sacrificed his own judgment in a case where they authorized him to exercise it. Were he to own to them that he sacrificed it in order to flatter their prejudices, hp should dread the rfetort, "Did you suppose the people of Pennsylvania had not good sense enough to receive a good government?" Under this impression, he should certainly follow his own judgment, which disapproved of the section. He would remark, in addition to the objections urged against it, that, ^is one branch of the Legislature was to be appointed by the legislatures of the States, the other by the people of the States— as both are to be paid by the States, . and to be appointable to State offices — nothing seemed to be wanting to prostrate the national Legislature but to render its members ineligible to national offices, and by that means take away its power of attracting those talents which were necessary to give weight to the Government, and to render it useful to the people. He was far from thinking the ambition which aspired to offices of dignity and trust an ignoble or culpable one. He was sure it was not politic to regard it in that light, or to withhold from it the prospect of those rewards which might engage it in the career of public service. "He observed that the State of Pennsylvania, which had gone as far as any State iiito the policy of fettering power, had not rendered the members of the legislature ineligible to offices of Govern- ment. Mr. Ellsworth did not think the mere postponement of the reward would be any mate- rial discouragement of merit. Ambitious minds will serve two yfears, or seven years, in the legislature, for the sake of qualifying themselves for other offices. This he thought a sufficient security for obtaining the services of the ablest men in the legislature; althoua;h, whilst members, they should be ineligible to public offices. Besides, merit will be most encouraged when most impartially rewarded. If rewards are to circulate only within the legislature, merit out of it will be discouraged. Mr. Mercer was extremely anxious on this point. What led to the appointment of this convention ? The corruption and mutability of the legislative councils of the States. If the plan does not remedy these, it will not recommend itself; and we shall not be able, in our private capacities, to support and enforce it; nor will the best part of our citizens exert themselves for the purpose. It is a great mistake to suppose that the paper we are to propose will' govern the United States. It is the men whom it will bring into the government, and interest in maintaining it, that are to govern them. The paper will only marlcout the modeand the form. Men are the substance, and must do the business. All government must be by force or influence. It is not the King of France, but 200,000 janizaries of power, that govern that kingdom. There will be no such force here; influ- XII SENATE ELECTION CASES. ence, then, must be substituted; and he would ask whether this could be done if the members of the legislature should be ineligible to offices of state ; whether such a disqual- ification would not determine all the most influential men to stay at home, and prefer appointments ■within their respective States. ' Mr. Wilson was by no means satisfied with the answer given by Mr. Ellsworth to the argument as to the discouragement of merit. The members must either go a second time into the legislature, and disqualify themselves, or say to their constituents, ''We served you before only from the mercenary view of qualifying ourselves for offices, and, having answered this purpose, we do not choose to be again elected. ' ' Mr. Gouvemenr Morris put the case of a war, and the citizen most capable of conduct- ing it happening to be a member of the legislature. What might have been the conse- quence of such a regulation at the commencement, or even in the course, of t^e late con- test fof our liberties? On the question for postponing, in order to take up Mr. Pinckney 's motion, it was lost. New Hampshire, Pennsylvania, Delaware, Maryland, Virginia, ay, 5; Massachusetts, Connecticut, New Jersey, North Carolina, South Carolina, no, 5; Georgia, divided. Mr. Gouverneur Morris moved to insert, after ' ' office, " " except offices in the Army or Navy; but, in that case, their offices shall be vacated." Mr. Broome seconds him. Mr. Randolph had been, and should continue, uniformly opposed to the striking out of the clause, as opening a door for influence and corruption. No arguments had made any impression on him but those which related to the case of war, and a coexisting inca- pacity of the fittest commanders to be employed. He admitted great weight in these, and would agree to the exception proposed by Mr. Gouverneur Morris. Mr. Butler and Mr. Pinckney urged a general postponement of Article VI, section 9, till it should be seen what powers would be vested in the Senate, when it would be more easy to judge of the expediency of allowing the officers of state to be chosen out of that body. A general postponement was agreed to new. con. (207). [Section 10 of Article VI was amended and agreed to. The debate is here omitted.! Saturday, September 1, 1787. In convention. — Mr. Brearly, from the committee of eleven, to which were referred yesterday the postponed part of the Constitution, and parts of reports not acted upon, made the following partial report: "Thatin lieu of Article VI, section 9, thewords following be inserted, viz: 'The mem- bers of each House shall be ineligible to any civil office under theauthority of the United States, during the time for which they shall respectively be elected; and no person hold- ing an office under the United States shall be a member of either House during his con- tinuance in office. ' ' ' Monday, September 3, 1787. Mr. Pinckney moved to postpone the report of the committee of eleven (see the 1st of September^, in order to take up the following: ' ' The members of each House shall be incapable of holding any office under the United States for which they, or any other for their benefit, receive any salary, fees, or emolu- ments of any kind, and the acceptanceof such office shall vacate their seats respectively." He was strenuously opposed to an ineligibility of members to office, and, therefore, wished to restrain the proposition to a mere incompatibility. He considered the eligi- bility of members of the legislature to the honorable offices of government as resembling the policy of the Romans, in making the temple of Virtue the road to the temple of Fame. On this question — Pennsylvania, North Carolina, ay, 2; New Hampshire, Massachusetts, Connecticut, New Jersey, Maryland, Virginia, South Carolina, Georgia, no, 8. Mr. King moved to insert the word " created " before the word " during," in the re- port of the committee. This, he said, would exclude the members of the first legislature under the Constitution, as most of the offices would then be created. Mr. Williamson seconded the motion. He did not see why members of the legislature should be ineligible to vacancies happening during the term of their election. - Mr. Sherman was for entirely incapacitating members of the legislature. He thought their eligibility to offices would give too much influence to the executive. He said the incapacity ought at least to be extended to cases where salaries should be increased as well as created, during the term of the member. He mentioned, also, the expedient by which the restriction could be evaded; to wit, an existing officer might be translated to an office created, and a member of the legislature be then put into the office vacated. Mr. Gouverneur Morris contended that the eligibility of members to office would lessen the Influence of the executive. If they cannot be appointed themselves, the executive mXEODUCTION. XIII will appoint their relations and friends, retaining the service and votes of the members for his purpose, in the legislature; vfhereas the appointment of the members deprives him of such an advantage. Mr. Gerry ttionght the eligibility of members would have the effect of opening batteries against good officers, in order to drive them out and make way for members of the legis- lature. Mr. Gorham was in favor of the amendment. "Without it, we go farther than has been done in any of the States, or, indeed, any other country. The experience of the State governments, where there was no such ineligibility, proved that it was not necessary; on the contrary, that the eligibility was among the inducements for fit men to enter into the legislative service. Mr. Randolph was inflexibly fixed against inviting men into the legislature by the prospect of being appointed to ofiices. Mr. Baldwin remarked, that the example of the States was not applicable. The legis- latures there are so numerous that an exclusion of their members would not leave proper men for oflB.ces. The case would be otherwise in the General Government. Colonel Mason. Instead of excluding merit, the ineligibility will keep out corruption, by excluding office-hunters. Mr. Wilson considered the exclusion of members of the legislature as increasing the in- fluence of the executive, as observed by Mr. Gouverneur Morris; at the same time that it would diminish the general energy of the Gobemment. He said that the legal disqual- ification for office would be odious to those who did not wish for office, but did not wish either to be marked by so degrading a distinction. Mr. PiNCKNBY. The first legislature will be composed of the ablest men to be found. The States will select such to put the Government into operation. Should the report of the committee, or even the amendment, be agreed to, the great offices, even those of the judiciary department, which are to continue for life, must be filled, whUe those most capable of filling them will be under a disqualification. On the question on Mr. King's motion — New Hai;npshire, Massachusetts, Pennsylvania, Virginia, North Carolina, ay, 5; Con- necticut, New Jersey, Maryland, South Carolina, Georgia, no, 5. The amendment being thus lost, by the equal division of the States, Mr. Williamson moved to insert the words "created, or the emoluments whereof shall have been in- creased," before the word " during," in the report of the committee. Mr. King seconded the motion, and on -the question — New Hampshire, Massachusetts, Pennsylvania, "Virginia, North Carolina, ay, 5; Con- necticut, New Jersey, Maryland, South Carolina, no, 4; Georgia, divided. The last clause, rendering a seat in the legislature and an office incompatible, was agreed to nem. con. The report, as amended and agreed to, is as follows: , ' ' The members of each House shall be ineligible to any civil office under the authority of the United States, created, or the emoluments whereof shall have been increased, during the time for which they shall respectively be elected. And no person, holding any office under the United States, shall be a member of either House during his con- tinuance in office. (251) Adjourned. [September 12, 1787, the Committee to Revise the Style, Ac, reported the Constitu- tion, in which the following changes were made in regard to the election and qualifica- tions of Senators.] Feiday, September 14, 1787. Article I, section 3, the words "by lot"* were struck out nem. con., on motion of Mr. Madison, that some rule might prevail in the rotation that would prevent both the members from the same State from going out at the same time. ^'Ex officio" struck out of the same section, as superfluous, nem. con.; and "or affir- mation,'' after "oath," inserted also unanimously. 'Mr. Rutledge and Mr. Gouverneur Morris moved — "That persons impeached be sus- pended from their offices until they be tried and acquitted." Mr. Madison. The President is made too dependent already on the Legislature by the power of one branch to try him in consequence of an impeachment by the other. This intermediate suspension wiU put him in the power of one branch only. They can at any moment, in order to make way for the functions of another who will be more favorable to their views, vote a temporary removal of the existing magistrate. Mr. King concurred in the opposition to the amendment. * " By lot" had been reinstated from the report of the committee of Ave, made on th@ 6th of AU' gust, as a correction of the prioted report by the «Q)«mittee of style, &o, XIV SENATE ELECTION CASES. On the question to agree to it — Connecticut,- South Carolina, Georgia, ay, 3; New Hampshire, Massachusetts,- New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, no, 8. Article I, section 4, " except as to the places of choosing Senators," was added, »e legislsvture, and shall t^e ^t le^ one vpte, ijijtil ^ Senator js elepte^r ■^VI SENATE ELECTION CASES. Sec. 16. Whenever on the meeting of the legislature of any State a vacancy exists in the representation of such State in the Senate, the legislature shall proceed, on the second Tuesday after meeting and organization, to elect a person to £11 such vacancy, in the manner prescribed in the preceding section for the election of a Senator for a fuU term. Sec. 17. Whenever during the session of the legislature of any State a vacancy occurs in the representation of such State in the Senate, similar proceedings to fill such vacancy shall be had on the second Tuesday after the. legislature has organized and has notice of such vacancy. Sec. 18. It shall be the duty of the executive of the State fromv^hich any Senator has been chosen, to certify his election, under the seal of the State, to the President of the Senate of the United States. Sec. 19. The certificate mentioned in the preceding section shall be countersigned by the secretary of state of the State. COMMITTEE ON PRIVILEGES AND ELECTIONS. The Committee on Privileges and Elections was formed in the first session of the Forty-second Congress. SENATE ELECTION CASES. I. CASES CONCERNING THE POWER OF EXECUTIVES OF STATES TO FILL VACANCIES. [Third Congress — First session.] KENSBY JOHNS, of Delaware. George'Eead, a Senator from Delaware, resigned his seat in December, 1793, during the recess of the legislature of said Stkte. The legislature met in January and adjourned in February, 1794. On the 19th of March, Kensey Johns was appointed by the governor of said State to fill the vacancy. It was determined that Mr. Johns was not entitled to his seat, a session of the legislature having Intervened between the resignation of Mr. Read and the appointment of Mr. Johns. The history of the case here giVeti consists of a transcrifjt of the proceedings of the Senate relat- ing to it from the Annals of Congress, 3d Cong., 1793-'95,within pages 73-78. Monday, Marcli 84, 1794. Kensey Johns appeared and produced his credentials of an appointment by the gov- ernor of the State of Delaware as a Senator of the United States; which were read. Whereupon it was moved that they be referred to the consideration of the Committee of Elections before the said Kensey Johns should be permitted to qualify, who are di- rected to report thereon; and it passed in the afiirmative — yeas 13, nays 12; as follows: Yeas — Messrs. Bradley, Brown, Burr, Edwards, Gunn, Hawkins, Jackson, Langdon, Livermore, Martin, Monroe, Eobinson, and Taylor. Nays — Messrs. Bradford, Cabot, Ellsworth, Foster, Frelinghnysen, Izard, Mitchell, Morris, Potts, Eutherfurd, Strong, and Vining. "Wednesday, March 26, 1794. Mr. Bradley reported from the Committee on Elections, to whom were referred the credentials of Kensey Johns, appointed by the executive of the State of Delaware a Senator of the United States in the place of George Bead, resigned. Ordered, That the report lie for consideration. Thursday, March 27, 1794. The Senate proceeded to the consideration of the report of the Committee of Elections, to whom were referred the credentials of Kensey Johns, appointed by the executive of the State of Delaware to be a Senator of the United States. On motion that the report be recommitted, it passed in the negative; and. After progress, it was Ordered, That the further consideration of this report be postponed until to-morrow. Feiday, March 28, 1794. The Senate resumed the consideration of the report of the Committee of Elections, to whom were referred the credentials of Kensey Johns, appointed by the executive of the State of Delaware to be a Senator of the United States; which report is as follows: Z SENATE ELECTION CASES. EBPOET OF COMMITTEE. [The committee consisted of Messrs. Bradley, Ellsworth, Mitchell, Rutherford, Brown, Livermore, and Taylor.] The Committee of Elections, to whom were referred the credentials of an appoint- ment by the governor of the State of Delaware of Kensey Johns as a Senator of the United States, having had the same under consideration, report — That George Eead, a Senator for the State of Delaware, resigned his seat upon the 18th day of December, 1793, and during the recess of the legislature of said State. That the legislature of the said State met in January and adjourned in February, 1794. That upon the 19th day of March, and subsei^uent tothe adjournment of the said legislature, Kensey Johns was appointed by the governor of said State to fill the va- cancy occasioned by the resignation aforesaid. Whereupon the committee submit the following resolution: Resolved, That Kensey Johns, appointed by the governor of the State of Delaware as a Senator of the United States for said State, is not entitled to a seat in the Senate of the United States, a session of the legislature of the said State having intervened between the resignation of the said Greorge Eead and the appointment of the said Ken- sey Johns. On the question to agree to this report, it passed in the aflSrmative — yeas 20, nays 7; as follows: Yeas— Messrs. Bradford, Bradley, Brown, Burr, Butler, Cabot, Edwards, Ellsworth, Frelinghuysen, Gunn, Hawkins, Jackson, King, Langdon, Livermore, Martin, Mitchell, Monroe, Robinson, and Taylor. Nays — Messrs. Foster, Izard, Morris, Potts, Eutherfurd, Strong, and Vining. Beaolved, That an attested copy of the resolution of the Senate on the appointment of Kensey Johns to be a Senator of the United States be transmitted by the President of the Senate to the executive of the State of Delaware. URIAH TKACY. 3 [Special session of Senate, March, 1801.] UEIAH TEAOY, Senator from Cowneoticut from December 6, 1796, till his death, July 19, 1807. Mr. Tracy's first term expired March 3, 1801. On March i, at a special session of the Senate, he produced credentials of appointment by the governor of Connecticut to fill the vacancy. It appears from the credentials, which are dated February 20, 1801, that the legislature of the State was not then in session, and that he was appointed "from the 3d of March next until the next meeting of the legislature of said State." Exception being taken to his credentials he was admitted by a vote of 13 yeas to 10 nays. Under these credentials he occupied his seat during the special session of the Senate, March 4 and 5. In May following he was elected by the legislature, and on December 6, the second day of the next session of Congress, he produced his credentials of election and the oath wag administered. The brief history of the ease here given, taken from the Annals of Congress, 6th Cong., 1799-1801, page 763, contains all that there is relating to it, neither the debate referred to nor the grounds of the decision being given. Wednesday, March 4, 1801. Exception being taken to the credentials of the Hon. Mr. Tracy, a Senator from the State of Connecticut, a debate ensued; and. On motion that he be admitted to take the oath required by the Constitution, it passed in the affirmative — yeas 13, nays 10; as follows: Yeas, — Messrs. Chipman, Dayton, Dwight Foster, Hillhouse, Howard, Livermore, J. Mason, Morris, Ogden, Eoss, Sheafe, Wells, and White, Nays — Messrs. Anderson, Armstrong, Baldwin, Brown, Cocke, S. T. Mason, Muhlen- berg, Nicholas, Pinckney, and Stone. SENATE ELECTION CASES. [Eleventh Congress — ^First session.] SAMUEL SMITH, Senator from Marylmd from March i, 1803, to March 3, 1815, and from December 17, 1822, to March 3, 1833. On the expiration of Mr. Smith's first term, viz, March 3, 1809, the legislature of Maryland not having elected his successor, and not then being in session, he was appointed by the governor on March 4 to fill the vacancy until the next tneeting of the legislature, which would take place on the 5bh of June next. Thereupon Mr. Smith addressed a letter to the Senate, setting forth these facts, and submitting to its determination Ahe question whether the appointment would or would not cease on the iirst day of the meeting of the legislature. It was determined that ho was entitled to hold his seat in the Senate during the session of the legislature, unless the legislature should fill • such vacancy by the appointment of a Senator, and the Senate be officially informed thereof. Under these credentials Mr. Smith held his seat during the special session of the Senate March 4r-7, 1809, and during the first session of the Eleventh Congress (May 22 to June 28, 1809). On the 16th of November following he was elected by the legislature, and on December 4, in the next session of Congress, he produced his credentials of election and the oath was administered. The history of the case here given consists of a transcript of the proceedings of the Senate relat- ing to it from the Annals of Congress, 11th Cong., 1st and 2d sess., vol. 1, 1809-'10, within pages 15-25. Monday, May 29, 1809. The President laid before the Senate a letter from Mr. Smith, of Maryland, stating that being appointed by the executive of that State a Senator, in conformity with the Constitution, until the next meeting of the legislature, which \?ill take place on the 5th day of June next, he submits to the determination of the Senate the question whether an appointment under the executive of Maryland to represent that State in the Senate of the United States will or will not cease on the first day of the meeting of the legis- lature thereof? And the letter was read; and. After debate, it was agreed that the further consideration thereof be postponed until to-morrow. Tuesday, May 30, 1809. The Senate resumed the consideration of the letter irom Mr. Smith, of Maryland, communicated yesterday; and. On motion of Mr. Giles, the further consideration thereof was postponed to the 5th of ■June next. Tuesday, June 6, 1809. The Senate resumed the consideration of the letter of Mr. Smith, a Senator from the State of Mainland ; and Mr. Giles submitted a resolution, which was amended, and is as follows: "Resolved, That the Hon. Samuel Smith, a Senator appointed by the executive of the State of Maryland to fill the vacancy which happened in the office of Senator for that State, is entitled to hold his seat in the Senate of the United States during the session of the Legislature of Maryland, which, by the proclamation of the governor of said State, was to commence on the 5th day of the present month of June; unless said legislature shall fill such vacancy by the appointment of a Senator, and this Senate be officially in- formed thereof. ' ' On motion by Mr. Anderson to amend the motion by striking out all after the word ".resolved," and inserting: "Thatany Senator of this body who holds a seat under an executive appointment cannot, according to the provisions of the Constitution of the United States, be entitled to continue to hold his seat as a member of this body after the meeting of the legislature of the State from which such Senator may be a member, ' ' And a division of the motion for amendment was called for, and the question having been taken on striking out, it passed in the negative; and. The motion for amendment having been lost, the original motion was agreed to yeas 19, nays 6; as follows: Yeas — Messrs. Anderson, Brent, Franklin, GaUlard, German, Giles, Gilman Good- rich, Griswold, Hillhouse, Lambert, Mathewson, Meigs, Pope, Eobinson, Smitli of New York, Thrnston, White, and Whiteside. Nays — Messrs. Bradley, Leib, Lloyd, Parker, Pickering, and Turner. JAMES LANMAN. [Special session of Senate, March, 1825.] JAMES LANMAN, Senator from Connecticut from March 4, 1819, to March 3, 1825. Mr. Lanman's term expired March 3, 1825. March 4, 1825, he produced credentials of appoint- ment by the governor to fill the vacancy. The credentials of appointment were dated February 8, 1825, and set forth that the President of the United States had desired the Senate to convene on the 4th day of March, and had caused official notice of that fact to be communicated to the governor. They were "to take effect immediately after the 3d day of March, 1823, and to continue until the next meeting of the legislature.' ' Exception being taken to the credentials, they were referred to a committee, who reported the facts as above. On motion that he be admitted, it was determined in the negative, the grounds on which the Senate proceeded not being given. The history of the case here given consists of a transcript of the proceedings of the Senate relat- ing lo it from the Senate Journal, 2d sess. 18th Cong., 1824-'25, within pages 272-283. A slightly fuller sketch of the debate than that here given may be found in Niles's Weekly Begister, v61. 28, pages 31, 32. Fbiday, March 4, 1825. The President laid before the Senate a letter from the Hon. James Lanman, inclosing the credentials of his appointment by the governor of Conueoticnt as a Senator of the United States, " to take effect immediately after the 3d day of March, 1825, and to con- tinue until the next meeting of the legislature," and expressing his readiness to receive the usual qualifications. Th6 letter and credentials were read. On motion by Mr. Holmes, of Maine, that Mr. Lanman be admitted to take the oath required by the Constitution, a debate ensued, and. On motion. Ordered, That the further consideration thereof be postponed untU. to-morrow. Saturday, March 5, 1825. The Senate resumed the consideration of the motion of yesterday, ' ' that Mr. Lanman be admitted to take the oath required by the Constitution," and. On motion by Mr. Eaton, Ordered, That said motion, together with the credentials of Mr. Lanman, be referred to a select committee, to consist of three members, to consider and report thereon. Mr. Eaton, Mr. Edwards, and Mr. Tazewell were appointed the committee. Mr. Van Buren submitted the following"motiou for consideration: "Resolved, That the Hon. JamesLanmanhaveleavetobeheardat the bar of the Senate on the question as to his right to a seat therein under an appointment by the executive of Connecticut. ' ' Monday; March 7, 1825. Mr. Eaton, fiam. the select committee to whom was referred, on the 5th instant, the motion "that Mr. Lanman be admitted to take the oath required by the Constitution," together with the credentials of Mr. Lanman, submitted the following report, which was read: EEPOET OF COMMITTEE. [The committee consisted-of Messrs. Eaton, Edwards, and Tazewell.]' That Mr. Lanman's term of service in the Senate expired on the 3d March. On the 4th, he presented to ttie Senate a certificate, regularly and properly authenticated, from Oliver Wolcott, governor of the State of Connecticut, setting forth that the President of the United States had desire(i the Senate to convene on the 4th day of March, and had caused official notice of that fact to be communicated to him. The certificate of appointment is dated the 8th of February, 1825, subsequent to the time of notification to him by the President. The certificate further recites that, at the time of its execution,- the legislature of the State was not in session, and would not be until the month of May. , The committee have looked into the Journals of the Senate to discover if they could find any authority or decision by them on this question ; and the following have been found recorded: " On the 27th of April, 1797, William Cocke was appointed a Senator from that State 6 SENATE ELECTION CASES. by the governor of Tennessee; his term of service having expired on the 3d of the pre- ceding March, and on the 15th of May took his seat, and was qualified. "On the 3d of March, 1801, the seat of Uriah' Tracy became vacant, the time for which he had been elected having expired. On the 20th of February preceding the governor of Connecticut reappointed him a Senator, and, in pursuance thereof, he was qualified and took his seat. , - " Joseph Anderson, a Senator from Tennessee, was appointed by the governor a mem- ber of the Senate on the 6th of February, 1809, and od the 4th of March after took his seat; the period for which he had been elected Ifaving on the preceding day expired. "John Williams, of Tennessee, on the 20th of January, 1817, was appointed a Sen^ ator in Congress, to take his seat on the 4th of March, when the term for which he had been elected would expire. Mr. Williams appeared, wa.s qualified, and took his seat. In none of these cases does it appear that there wfjs any objection made, or question raised, except In 1801, in the case of Mr Tracy, when the vote was 13 for and 10 against the right^of the member to take his seat. Those are the only analogous cases the com- mittee have been able to find. By reference to the statute laws of Connecticut the committee find that in that State there is a law upon this subject which is in the following words: "Whenever any va- cancy shall happen in the representation of this State in the Senate of the United States, by the expiration of the term of service of a Senator, or by resignation or otherwise, the general assembly, ^f then in session, shall, by a concurrent vote of the senate and house of representatives, proceed to fill said vacancy by a new election; and'in case such vacancy shall happen in the recess of the general assembly, the governor shall appoint some person to fill the same until the next meeting of the general assembly. ' ' The Senate proceeded to consider the motion of the 5th instant, that the Hon. James Lanman have leave to be heard at the bar of the Senate on the question as to his right to a seat therein; and agreed thereto. Mr. Edwards submitted the following motion; which was read: " Resolved, That the Hon. James Lanman, appointed a Senator by the governor of the State of Connecticut, be now admitted to the oath required by the Constitution." And on the question to agree thereto, it was determined in the negative — yeas 18, nays 23. The yeas and nays being desired by one-fifth of the Senators present. Those who voted in the aflrmative are Messrs. Bell, Bouligny, Chase, Clayton, D'Wolf, Edwards, Harrison, Hendricks, Johnston of Louisiana, "Kane, Knight, Lloyd of Massa^ chusetts, M'llvaine, Mills, Noble, Eowan, Seymour, and Thomas. Those who voted in the negative are Messrs. Barton, Benton, Berrien^ Brancji, Chan- dler, Dickerson, Eaton, Findlay, Gaillard, Hayne, Holmes of Maine, Holmes of Mis- sissippi, Jackson, King of Alabama,, Lloyd of Maryland, Macon, Marks, Euggles, Smith, Tazewell, Van Bnren, Van Dyke, and Williams. AMBROSE H. SEVIER. [Special session of Senate, March, 1837.] AMBECiSE H. SBYIER, Senator from ArJcansas from December 5, 1836, to March 4, 1837, and from March 8, 1837, till he resigned, March 15, 1848. The State of Arkansas was admitted into thfe Union in June, 1836. In October, 1836, the legisla- ture of that State elected Ambrose H. Sevier and "William S. Fulton Senators. On the allotment of the Arkansas Senators to their respective classes, as required by the third section of the first article of the Constitution, Mr. Sevier was placed in the class of Senators whose term of service expired on the 3d of March, 1837. The legislature of Arkansas had no opuortunity to fill the vacancy, not having been in session after the result, of the allotment was known in that State. January 17, 1837, the governor of Arkansas appointed Mr. Sevier to fill the vacancy which would take place on the 3d of March. At the special session of the Senate in March the credentials were referred to the Committee on the Judiciary. The committee reported that as the time when Mr. Sevier was to go out of of&ce was decided by lot, and as the legislature, not being in session after this decision, could not supply the vacancy, it came " fairly within the provision of the Constitution contained in the third section of theflrst article, which declares, ' and if vacancies happen by resignation or otherwise,' &c." ; and reported a, resolution that the oath required by the Constitution be administered to him.' March 8 this resolution passed and Mr. Sevier took his seat. No debates on the adoption of the resolution are found. TJnder these credentials Mr. Sevier held the seat during the remainder of the special session March 8-10, during the first session of the Twenty-fifth Congress, September 4 to October 16, and from December 4-13 of the second session, when he presented credentials of elec- tion (which had taken place November 7) for term ending March 3, 1843, and the oath was adminis- tered. The history of the case here given consists of a transcript of the proceedings of the Senate relat- ing to it from the Congressional G-lobe, 2d sess. 24th Cong., pages 1 and 209, and during the special session from the Senate Journal, 2d sess. 24th Cong., 183S-'37, within pages 358-367. No fuUeraccount of the proceedings during the special session than that taken from the Senate Journal is found. • - ^ Monday, December 5, 1836. Mr. Benton presented the credentials of the Hon. A. H. Sevier and W. S. Fulton, Senators-elect from the State of Arkansas. The Vice-President administered the oath - prescribed by the Constitution of the United States, and they took their seats. On motion by Mr. Benton, Resolved, That the Secretary put into the ballot-box three papers of equal size, num- bered 1, 2, 3. Each, of the Senators from the State of Arkansas draw out one paper. No. 1, if drawn, shall entitle the member to be placed in the class of Senators whose terms of service will expire the 3d day of March, 1837 ; No. 2 in the class whose terms will expire the 3d day of March, 1839 ; and No. 3 in the class whose terms will expire on the 3d day of March, 1841. In pursuance of the above order, Mr. Sevier drew from the ballot-box No. 1, and Mr. Pulton No. 3. Therefore Mr. Sevier's term expires on the 3d of March, 1837, and Mr. Fulton's on the 3d of March, 1841. Monday, Fehnmry 27, 1837. Mr. Fulton presented the credentials of the Hon. Ambrose H. Sevier, appointed a Senator by the governor of Arkansas to fill the vacancy that will occur on the 4th of March next, for the term of six years. Mr. Webster expressed his doubts as to the. constitutionality of making an appoint>- ment, no vacancy having occurred. Mr. Fulton remarked that he and his colleague were aware of this difficulty; but he (Mr. F.), supposing that it would be a matter for the next Senate to act upon, presented the credentials under that impression.. The Chair said that it was not for the Senate to consider the qualifications of Senators elected to the next Congress. , That Congress must act on this subject. Mr. Sevier said that he had very great doubt of the legality of the appointment, and did not at all doubt the patriotic motives which influenced the Senator from Massa- chusetts in expressing himself as he had done. Mr. S. carednothow the matter should be decided, one way or the other. Mr. Webster was sure that the honorable Senator was- very indifferent as to how the question might be decided, and would give him credit as to his motives in intimating that there might be some irregularity in the proceeding. Mr. Sevier expressed himseff quite satisfied with the course pursued by the honorable Senator from Massachusetts. 8 SENATE ELECTION CASES. ' Saturday, March 4, 1837. The Hon. Ambrose H. Sevier, whose credentials were read the 27th February, 1837, appearing for the purpose of being qualified, On motion by Mr. King, of Alabama, Ordered, That the further consideration ot the same be postponed to Monday next. Monday, March 6, 1837. The Senate resumed the consideration of the credentials of the Hon. Ambrose H. Sevier, and. On motion by Mr. Fulton, Ordered, That they be referred to the Committee on the Judiciary. " Tuesday, March 7, 1837. Mr. Grandy, from the Committee on the Judiciary, to whom were referred the cre- dentials of the Hon. Ambrose H. Sevier, submitted the following report: EEPOET OF COMMITTEE. [The committee consisted of Messrs. Grundy (chairman), Crittenden, Morris, King of Georgia, and Wall.] The Committee on the Judiciary, to whom was referred the credentials of the Hon. Ambrose H. Sevier, have had the same under consideration, and submit the following report: At the last session of Congress the State of Arkansas was admitted into the Union, and the legislature of that State, in the month of October, 1836, elected Ambrose H. Sevier and William S. Fulton Senators to represent the State in the Senate of the United States. ' It also appears that upon tlie allotment of the said Arkansas Senators to their respective classes, as required by the third section of the first article of the Constitution, the said Ambrose H. Sevier was plaqed in the cla& of Senators whose term of service expired on the 3d day of March, 1837, and that the legislature of Arkansas have had no opportunity of filling the vacancy, not having been in session since the fact that the vacancy Would occur could have been known in that State. The governor of the State of Arkansas on the 17th day of January last commissioned the said Sevier as Senator to fill the vacancy which would take place on the 3d of March. Upon this state of the case the question is presented whether the said Ambrose H. Sevier is entitled to his seat under the appoint- ment made by the executive of the State of Arkansas ? In looking into the practice of the Senate upon the subject of executive appointiflents, no case like the present has been found. Several oases have occurred in which the executives of different States in antic- ipation of the expiration of the regular term of service have appointed Senators (the leg- islatures not being in session), and in all of these cases the Senators thus appointed were admitted to their seats, until the called session of the Senate in March, 1825, when Mr. Lanman, of Connecticut, whose term of service expired on the 3d of March, 1825, pro- duced his credentials from the governor of Connecticut and the Senate decided he was not entitled to his seat by a vote of 23 to 18. This decision seems to have been generally acquiesced in since that time; nor is it in- tended by the committee to call its correctness in question. The principle asserted in that case is that the legislature of a State by making elections themselves shall provide for all vacancies which must occur at stated and known periods; and that the expiration of a regular term of service is not such a contingency as is embraced in the second section of the first article of the Constitution. The case now under consideration is wholly different in principle. The time when Mr. Sevier was to go out of office under his election made by the legislature of Arkansas was decided by lot, agreeably to the provisions of the Constitution on that subject. After the decision thus made, the legislature of Arkansas, not being in session, could not supply the vacancy; and the case, in the opinion of the committee, comes fairly within the provision of the Constitution contained in the third section of the first article, which declares, "and if vacancies happen by resignation or otherwise during the recess of the legislature of any State the executive thereof may make temporary appointments until the next meeting of the legislature, which shall then fill such vacancies. ' ' The committee are of opinion that Mr. Sevier is entitled to his seat under the execu- tive appointment of-the 17th of January, 1837, and therefore submit the following reso- lution: Besolved, That the Hon. Ambrose H. Sevier, appointed a Senator by the governor of the State of Arkansas, have the oath required by the Constitution administered to him. The Senate proceeded to consider the resolution; aiid. On motion by Mr. King, of Georgia, Ordered, That it lie on the table, and that the report be printed. AMBROSE H. SEVIEE. » Wednesday, March 8, 1837. The Senate resumed the consideration of the resolution reported by the Committee on the Judiciary in relation to the appointment of the Hon. Ambrose H. Sevier; and, On the question, ' ' Will the Senate agree to the resolution ? " it was determined in the affirmative— yeas 26, nays 19. On motion by Mr. Grundy, the yeas and nays being desired by one-flfth of the Sena- tors present, Those who votedin the affirmative are Messrs. Allen, Benton, Brown, Buchanan, Clay- ton, Cuthbert, Fulton, Grundy, Hubbard, Linn, Lyon, Nicholas, Niles, Norvell, Pierce, Preston, Eives, Eobinson, Buggies, Smith of Connecticut, Tipton, Walker, Wall, White, Wright, and Young. Those who voted in the negative are Messrs. Bayard, Black, Clay, Crittenden, Davis, Kent, King of Alabama, King of Georgia, Knight, McKean, Morris, Mouton, Prentiss, Eobbins, Smith of Indiana, Southard, Swift, Webster, and Williams. Whereupon the oath prescribed by law was administered to the Hon. Mr. Sevier, and he took his seat in the Senaie. 10 • SENATE ELECTION CASES. [Thirty-second Congress — Second session.] EOBEET C. WINTHEOP, Senator from Massachusetts fr(m July 30, 1850, to February 7, 1851. Mr. Winthrop was appointed July 27, 1850, to fill a vacancy happening in the Senate by the resig' nation of Daniel Webster. February 1, 1851, Robert Rantoul was elected by the legislature to nil the unexpired term. February 4, Mr. Bantoul not having appeared to take the seat, Mr. Winthrop offered a resolution, which was agreed to, "that the Committee on the Judiciary inquire and report to the Senate, as early as practicable, at what period the term of service of a Senator appointed by the executive of a State during the recess of the legislature thereof rightfully expires." The com- mittee reported that a person so appointed had a right to the seat until the legislature, at its next meeting, should elect a person to fill the unexpired term, and the person elected should accept, and his acoeptancfe appear to the Senate ; that presentation of credentials implied acceptance ; that these views were sustained by precedents. The report was debated, but no action taten, the whole subject being laid on the table. Mr. Winthiop vacated the seat February 7, 1851, when Mr. Eantoul s credentials were presented. The history of the case here given consists of a transcript of the proceedings of the Senate relatmg to it from the Senate Journal, 2d sess. Slst Cong., 1850-'51j with the report of the committee from Senate Reports, 2d sess. 31st Cong., 1850-'51, No. 269. The debates on the case are found in the Congressional Globe, 2d sess. Slst Cong., vol. 23, within pages 425-478, special references to which are inserted below. Tuesday, Fehruary 4, 1851. Mr. Winthrop submitted the following resolution ; which was considered by unanimous consent, and agreed to: "Resolved, That the Committee on the Judiciary inquire and report to the Senate, as early as practicable, at wha* period the term of service of a Senator appointed by the executive of a State during the recess of the legislature thereof rightfully expires. ' ' [Mr. Winthrop accompanied the introduction of the resolution by some remarks on the practice of the Senate in regard to the subject, expressing a desire in his own case to hold his seat just so long as he was constitutionally entitled thereto and no longer. These remarks are found on pages 425, 426 of the Congressional Globe referred to.] Wbdnesday, February 5, 1851. Mr. Butler, from the Committee on the Judiciary, consisting of Messrs, Butler (chair- man), Berrien, Bradbury, Dayton, and Downs, who were instructed by a resolution of the Senate to inquire and report at what period the term of service of a Senator appointed by the executive of a State during the recess of the legislature thereof rightfully expires, submitted a report, which was ordered to he printed. eepoet of committee. In Senate of the United States. Febeuaey 5, 1851. — Submitted, and ordered to be printed. Mr. Butler made the following report: The Comroittee on the Judiciary, to whom was referred a resolution directing said committee to inquire and report at what period the term of service of a Senator ap- pointed by the executive of a State during the recess of the legislature thereof right- fully expires, have had the same under consideration, and report: The question presented by the resolution turns mainly upon the construction of the clause of Article I, section 2, of the Constitution of the United States, which provides that " if vacancies happen, by resignation or otherwise, during the recess of the legisla- ture of any State, the executive thereof may make temporary appointments until the next meeting of the legislature, which shall fill such vacancies." Your committee are of the opinion that the sitting member under executive appoint- ment has a right to occupy his seat until the vacancy shall be filled by the legislature of the State of which he is a Senator during the next meeting thereof. To fill such vacancy it is not only necessary to make an election, but that the person elected shall accept the appointment. And your committee are further of the opinion that such ac- ceptance should appear by the presentation to the Senate of the credentials of the mem- ber-elect, or other ofacial information of the fact — at which time the office of the sitting ROBERT C. WINTHEOP. 11 member tetminatea. When the member-elect is present and ready to qualify his ex- press acceptance is at once made known; and when his credentials are presented in his absence his acceptance may be fairly implied, These general views are sustained by precedents. An early one may be found in the Senate Journal of 1809, page 381, where the question was settled, after debate, by the adoption On the 6th of June of the following resolution: "Eesolved, That the Hon. Samuel Smith, a Senator appointed by the .executive of Maryland to fill the vacancy which happened in the office of Senator for that State, is entitled to hold his seat in the Senate of the United States during the session of the leg- islature of Maryland, which, by the proclamation of the governor of said State, was to commence on the 5th day of the present month, of June, unless said legislature shall fill such vacancy by the appointment of a Senator, and this Senate be officially informed thereof." The precedent in this case has been uniformly followed from that time to the present in the many cases that have arisen involving the same question. [A list of precedents accompanying the report is found annexed to the report in the volume of Senate Reports referred to in the head-note. It is not printed here, as all the cases are included in the list of appointments on page 48 of this book.] Feiday, Jfebruary 7, 1851. Mr. Winthrop presented the credentials of the Hon. Robert Rantoul, jr., elected a Senator by the legislature of the Commonwealth of Massachusetts to fill the vacancy . occasioned by the resignation of the Hon. Daniel "Webster; which were read. [Mr. Winthrop stated that he presented the credentials "with the understanding that, agreeably to the recent report of the Judiciary Committee, the presentation of the credentials would imply an acceptance on the part of the Senator-elect, so far forth at least as to terminate the office of the sitting member." These remarks are found on pages 459, 460 of the Congressional Globe referred to.] Mr. Clay moved to take up the report of the committee with the view of deciding whether the retiring member is entitled to his seat.* [Some remarks on the report are found on page 460 of the Congressional Globe re- ferred to.] Mr. Davis, of Massachusetts, submitted the following resolution; which was considered by unanimous consent: "Resolved, That a Senator appointed by the executive of a State to fill a vacancy is entitled to hold his seat until the Senate is satisfied that a successor is elected and has accepted the office: Provided, Such election and acceptance take place during the session of the legislature held next after the vacancy occurs, and that such acceptance ought not to be inferred from the mere presentation to the Senate of the credentials of the newly- elected Senator." [A debate on the question whether the right to a seat under executive appointment expires on the day of the meeting of the legislature or not until an election has taken place is found on pages 460-463.] Mr. Rhett moved to amend the resolution of the gentleman from Massachusetts by striking out all after the word "resolved" and inserting the following: ' ' That a Senator holding a seat by appointment of the executive of a State can only fill the same ' untU the next meeting of the legislature ' thereof, at which time it devolves upon the legislature of the State to fill the vacancy then existing, "f [The debate on the same question is continued on pages 463-465 of the Congressional Globe referred to.] An amendment having been proposed by Mr. Rhett, on motion by Mr. Hale that the resolution lie on the table, it was determined in the negative — yeas 22, nays 25. On motion by Mr. Rhett, the yeas and nays being desired by one-fifth of the Senators present, Those who voted in the affirmative are Messrs. Benton, Bradbury, Butler, Chase, Davis of Mississippi, Dickinson, Douglas, Downs, Felch, Gwin, Hale, Hamlin, Hunter, Jones, King, Miller, Pearce, Phelps, -Pratt, Sturgeon, Upham, and Wales. Those who voted in the negative are Messrs. Badger, Baldwin, Bell, Berrien, Borland, Clarke, Davis of Massachusetts, Dodge of Wisconsin, Dodge of Iowa,Foote, Greene, Man- gum, Mason, Morton, Norris, Rhett, Rusk, Smith, Soul6, Spruance, Tumey, Underwood, Walker, Whitcomb, and Yulee. [The debate on the same subject is continued on pages 465-467 of the Congressional Globe referred to.] * This motion is taken from the Congressional Qlobe. It does not appear in the Senate Journal. tTliis amendqient istalien from the Congressional Globe. It does not appear in the Senate Jour- nal. 12 SENATE ELECTION CASES. Satueday, February 8, 1851. The Senate resumed the consideration of the resolution submitted yesteday by Mr. Davis, of Massachusetts, in relation to the duration of an appointment made by the execu- tive of a State to fill vacancies in the Senate, and after debate (which is found on pages 477, 478 of the Congressional Globe referred to), Mr. Baldwin proposed the following resolution as an amendment to the resolution sub- mitted by theSenator from Massachusetts: ' ' Sesolved, That a Senator appointed by the executive of a State in consequence of the happening of a vacancy during the recess of the legislature is entitled to hold his seat under the temporary appointment of the executive until such vacancy is filled by the legis- lature at the next session thereof, and the- person appointed to fill the same shall appear and be qualified therefor, pursuant to the requirement of the Constitution. ' ' * [Remarks to the effect that nothing practical was before the Senate, Mr. Winthrop having vacated his seat and Mr. Rantoul not having appeared, are found on page 478 of the Congressional Globe referred to.] On motion by Mr. Hale, Ordered, That it lie on the table. *This resolution is taken from the Congressional Olobe. It does not appear in the Senate Jour nal. AKCHIBALD DIXON. 13 [Thirty-second Congress — Second session.] AECHIBALD DIXON, Senator from Kentuclcy from December 20, 1852, till March 3, 1855. December 15, 185], Henry Clay addressed a letter to the general assembly of Kentucky resigning ,his seat in the Senate, "to take effect oh the first Monday of September, 1852." December 30, 1851,- Archibald Dixon was elected by the legislature to fill that .unexpired term. June 29, 1852, during the recess of the legisla^iure, Henry Clay died. July 6, the governor appointed David Meriwether Senator " until the time the resignation of Henry Clay takes effect." Mr. Meriwether's credentials were presented and he took his seat July 16, and held it until Congress adjourned August 31. Decem- ber 6, the Senate reassembled, Mr. Meriwether did not appear, and Mr. Dixon appeared and pre- sented his credentials. Objection was made to his taking the oath of office, on the ground that the seat belonged to Mr. Meriwether ; that Mr. Meriwether had been appointed to fill a vacancy happen- ing by the death of a Senator, and that he had a right to the seat until the next meeting of the legis- lature, and that it was not in the power of the governor to limit his term of oflice to the first Monday in September, l&j2. The seat was vacant until December 20, when the Senate by a vote of 27"yeas to 10 nays resolved that Mr. Dixon had been duly elected " to fill the vacancy in the Senate occa- sioned by the resignation of the Hon. Henry Clay, and was entitled to a seat therein." The history of the case here given consists of a transcript of the proceedings of the Senate relat- ing to it from the Senate Journals, 1st and 2d gess. 32d Cong., 1851-'52andl852-'53.' There being no report of a committee in the case, an extract from the remarks of Mr. Busk (page 93 of the Con- gressional Globe, vol. 26, 2d sess. 32d Cong., December 20, 1852) is given, which states briefly the main points under discussion by the Senate. Special references to each day's debates on the subject, most of which are found within pages 1-96 of the Congressional Globe above referred to, are inserted below. [Extract from remarks of Thomas J. Busk, of Texas, in Senate, December 20, 1852.] - "The following facts make np the case: On the 17th of December, 1851, Henry Clay was a Senator from Kentucky, chosen by the legislature for six years, which would have expired on the 3d of March, 1855. Being so a Senator, he resigned by a communication to the legislature of Kentucky, declaring that it was to take effect on the first Monday in September, 1852. The legislature, then in session, received the resignation, and chose Mr. Dixon to fill the vacancy thus to occur from the first Monday in September, 1852, to the 3d day of March, 1855. The legislature then adjourned. On the 29th day of June, 1852, during the recess of the legislature of Kentucky, Mr. Clay died, and the governor of that State made a ' temporary appointment ' of Mr. Meriwether as a Sena- tor from Kentucky, to hold the seat until the first Monday of September, 1852. Mr. Meri- wether immediately took the vacant seat, and held it until Congress adjourned on the last day of August, 1852. On the 6th of December, 1852, the Senate reassembles, Mr. Meriwether does not appear, and Mr. Dixon appears and presents his credentials, and ' claims the vacant seat. ' ' Manifestly, Mr. Dixon is one of two Senators ' chosen by the legislature ' of Kentucky ' for six years, ' and he was chosen to fill a vacancy which has happened in the term of Mr. Clay. "The whole question turns on the point, how did this vacancy happen? Mr. Clay re- signed, fixing the first Monday of September as the day when he should vacuie his seat, and died, nevertheless, a Senator before that day arrived. Mr. Dixon was appointed by the legislature when in .session, before not only the day which Mr. Clay's resignation fixed lor his retirement, but also before Mr. Clay's death. "We who maintain Mr. Dixon's title insist that the vancancy happened by Mr. Clay's resignation. On the contrary, those who deny Mr. Dixon's title insist that the vacancy happened by Mr. Clay's death. " Four questions arise: ' ' First. Can a Senator resign ? ' ' Second. Can a Senator resigning appoint a future day for his retirement from the Senate ? ' 'Third. Can the proper appoiating power receivg such a resignation, and prospectively fill the vacancy ? "Fourth. If the legislature so prospectively fill the vacancy, can the appointment be defeated by the death of the resigning Senator before the arrival of the day fixed for his retirement from the Senate? "If a Senator can resign, and can so resign prospectively, and if the legislature can so fill the vacancy prospectively, and if their action cannot be defeated by the death of the resigning Senator, then Mr. Dixon's title is good, valid, and complete. ' ' The first question is expressly decided by the Constitution, which declares that va- cancies may ' happen by resignation. ' "The second question is decided by an unbroken succession of precedents from the 14 SENATE ELECTION CASES. foundation of the Government. Mr. Bledsoe so resigned, fixing a fatnre day; so did Mr. Clay in 1843; so did Mr. Berrien in 1852; and so did Mr. Foote in 1852. " The third question is answered with equal distinctness by precedents. ' The legis- lature of Kentucky prospectively filled the vacancy made by Mr. Clay's resignation in 1842; the governor of Georgia prospectively filled the vacancy of Mr. Berrien in 1852; and the governor or legislature of Mississippi prospectively filled the vacancy of Mr. Foote in 1852. ' " The only question remaining is the fourth: Can the death of the resigning Senator after the legislature has prospectively filled the vacancy, and before the day fixed for his retirement, defeat the appointment of his successor already made?" [Transcript of proceedings from the Journals.] / Thtjesday, Jvly 15, 1852. Mr. Bright presented the credentials of the Hon. David Meriwether, appointed a Sen- ator by the executive of the State of Kentucky untU the first Monday in September next, to fiU the vacancy occasioned by the death of the Hon. Henry Clay ; which were read, and the oath prescribed by law having been administered to Mr. Meriwether, he took his seat in the Senate. [A debate on the question whether Mr. Meriwether's credentials should be referred to ^ committee on account of the irregularity they contained of limiting the term of service to the first Monday in September is found on pages 1783, 1784 of the Congressional Globe, vol. 24, part 3, 1st sess. 32d Cong., 1851-'52.] Monday, December 6, 18£i2- Mr. Jones, of Tennessee, presented the credentials of the Hon. Archibald Dixon, chosen a Senator by the legislature of the Commonwealth of Kentucky, to serve for the unexpired term rendered vacant by the resignation of the Hon. Henry Clay, to take effect from the first Monday of September, 1852, until the end of the term for which said Henry Clay was elected; which were read. An objection being made by Mr. Gwin to administering the oath prescribed by law to the Hon. Mr. Dixon, a debate ensued, and the following resolution was submitted by Mr. Gwin: ^'Beaolved, That the credentials of Archibald Dixon, esq., be referred to a select com- mittee of five, to consider and report thereon. ' ' And Mr. Mangum having proposed the following amendment: Insert at the end of the resolution, " and that the said Archibald Dixon be now qualified and permitted to take his seat in the Senate, and occupy the same pending the action of the said commit- tee," . By unanimous consent the proceeding thereon was suspended. ******* The Senate resumed the consideration of the credentiala of the Hon. Archibald Dixon, and, after further debate, on motion, and by unanimous consent, the proceeding thereon was suspended for the purpose of receiving a report of a committee. ******* The Senate resumed the consideration of the credentials of the Hon. Archibald Dixon, with the resolution submitted by Mr. Gwin. [The debates of this day on the subject are found on pages 1-^ of the volume of the Congressional Globe referred to in the head-note. They include a discussion of the priTna facie right of Mr. Dixon to the seat pending the action of the Senate.] Ttiesday, December 7, 1852. The Senate resumed the consideration of the credentials, &c. [The debate is found on pages 12-19 of the Globe.] Wednesday, December 8, 1852. The Senate resumed the considentiion of the credentials of the Hon. Archibald Dixon, with the resolution submitted by Mr. Gwin, and. On motion by Mr. Badger, Ordered, That the further consideration thereof be postponed to Monday next. Monday, December 13, 1852. The Senate resumed the consideration of the credentials of the Hon. Archibald Dixon with the resolution submitted by Mr. Gwin. ' On motion by Mr. Hunter, and by unanimous consent. Ordered, That, until the question thereon be decided, the name of Mr. Meriwether be omitted in any call of the yeas and nays. ARCHIBALD DIXON. . 15 Mr. Mangum withdrew the amendment which he Offered, and Mr. Jones, of Tennessee, offered the following as an amendment to the proposition of Mr. Gwin, to strike out all after the word "resolved," and insert: "That the Hon. Archibald Dixon was duly elected by the legislature of the §tate of Kentucky to fill the vacancy in the Senate occasioned by the resignation of the Hon. Henry Clay, and is entitled to a geat therein." * [The debate is found on pages 43-47 of the Globe.] Wednesday, December 15, 1852. The Senate resumed the consideration of the credentials, &c. [The debate is found on pages 58-62 of the Globe.] Thuesday, December 16, 1852. The Senate resumed the consideration of the credentials, &c. [The debate is found on pages 69-76 of the Globe.] Monday, December 20, 1852. The Senate resumed consideration of the credentials of the Hon. Archibald Dixon, with the resolution submitted by Mr. Gwin. On motion by Mr. Jones, of Tennessee, to amend the resolution by striking out, after the word "resolved," "that the credentialsof Archibald Dixon, esq., be referred to the Committee on the Judiciary, who shall consider and report thereon;" and, in lieu thereof, inserting, "that the Hon. Archibald Dixon was duly elected by the legislature of the State of Kentucky to fill the vacancy in the Senate occasioned by the resignation of the Hon. Henry Clay, and is entitled to a seat therein," it was determined in the affirma- tive — yeas 27, nays 16. On motion by Mr. Hale, the yeas and nays being desired by one-fifth of the Senators present, . , Those who voted in the affirmative are Messrs. Adams, Atchison, Badger, Bell,-Brooke, Butler, Chase, Clarke, Cooper, Davis, Dawson, Dodge of Iowa, Fish, Geyer, Hale, Jones of Tennessee, Miller, Morton, Pearce, Rusk, Seward, Smith, Spruance, Sumner, Under- wood, Upham, and Wade. Those who voted in the negative are Messrs. Bayard, Borland, Bradbury, Bright, Cass, Cathcart, De Saussiire, Dodge of Wisconsin, Douglas, Downs, Pelch, Gwin, Mason, Norris, Toucey, and Weller. So the proposed amendment was agreed to. On the question to agree to the resolution as amended, it passed in the affirmative; and the oath pregoribed by law was administered to Mr. Dixon, and he took his seat in the Senate. [The debate is found on pages 90-96 of the Globe.] COMPENSATION OF ME. MEEIWETHEE. Tuesday, December 21, 1852. Mr. Rusk submitted the'fifllowing resolution; which was read: ' ' Besolved, That the Hon. David Meriwether, late a member of the Senate ficom the State of Kentucky, be paid his mileage and per diem up to the 20tji day of December inclu- sive." [Some remarks in favor of the adoption of the resolution are found on page 105 of the ^ Congressional Globe referred to in the head-note.] Wednesday, January 5, 1853. The resolution submitted by Mr. Rusk the 21st of December last, to pay the Hon. Mr. Meiiwether his per diem and mileage, was read the second time, and considered as in Committee of the Whole; and, no amendment being made, it was reported to the Senate. i Ordered, That it be engrossed and read a third time. The said resolution was read a third time, by unanimous consent. Besolved, That it pass. [Remarks on the adoption of the resolution are found on pages 220-221 of the Congres- sional Globe referred to in the head-note.] * TUs amendment is tal^en from tbe Globe. It does not appear in the Senate Journal. 16 SENATE ELECTION CASES. [Thirty-third Congress — First session.] SAMUEL S. PHELPS, Senator from Vermont from March 4, 1839, to March 3, 1851, and from January 19, 1853, to March 17, 1854. Mr. Phelps was appointed by the governor of Vermont January 17, 1853, during the reoqss of the legislature, to All a' vacancy in the Senate happening by the death of William Upham. His creden- tials were presented and he took his seat January 19. The legislature met in October and.adjournea in December without electing a Senator to fill the unexpired term. Mv. Phelps had held the seat during the remainder of the second session of the Thirty-second Congress, endmg March 6, and during the special session of the Senate March 4 to April 11. December 29 he again attended. Jan- uary 4, 1854, the Senate resolved that the Committee on the Judiciary inquire whether he was enti- tled to retain his seat. January 16 the committee reported the resolution, ' that the Hon. Samuel S. Phelps isentitled to hisseat in the Senate of the United States." It was accompanied by a minor- ity report adverse to the right of Mr. Phelps to a seat. March 16 the resolution reported by the com- mittee jvas rejected by a vote of 12 yeas to 26 nays, and it was '"Besolved, That the Hon. bamuel b. Phelpsisnotentitled to retain his seat in the Senate of the United States." The history of the case here given consists of a transcript of the proceedings of the Senate relating to it from the Senate .Journal, 1st sess. 33d Cong. , 1853-'54, together with the report of the committee (majority and minority), from Senate Reports; 1st sess. 33d Cong., vol. 1, 1853-'54, Report No. 34. The debates in the case, which are extended, are found in the Congressional Globe, vol . 28, part 1, 1st sess. 33d Cong., and in the Appendix to the- Congressional Globe, vol. 29, 1st sess. 33d Cong. Special references to the debates of each day are Inserted below. Wednesday, January 19, 1853. Mr. Foot presented the credentials of the Hon. Sanmel S. Phelps, appointed a Senator by the governor of the State of Vermont to fill the vacancy occasioned by the death of the Hon. William Upham; which were read. The oath prescribed by law was administered to Mr. Phelps, and he took his seat in the Senate. Tuesday, January 3, 1854. Mr. Seward submitted the following resolution for consideration: "Whereas the Hon. Samuel S. Phelps was appointed by his excellency the governor of Vermont, in the recess of the legislature of that State, to fill a vacancy in the Senate of the United States which had happened by the death of the Hon. William Upham, a Senator whose term of six years would have continued until the 4th of March, 1855; and "Whereas it is understood that since that temporary appointment was made the legis- lature of Vermont has been convened at their annual session and has adjourned without filling such vacancy: Therefore, "Besolved, That the Committee on the Judiciary inquire whether the Hon. Samuel S. Phelps is entitled to retain a seat in the Senate of the United States." [Mr. Seward accompanied the introduction of the resolution by a statement of the facts ill the case, which statement is found "^)n page 103 of the Congressional Globe re- ferred to in the head-note. ] Wednesday, January 4, 1854. The Senate proceeded to consider the resolution submitted by Mr. Seward respecting the right of the Hon. Samuel S. Phelps to a seat in the Senate, and the resolution was agreed to. [A short debate is found on pages 115-117 of the Globe.] , Monday, January 16, 1854. Mr. Pettit, from the Committee on the Judiciary, who were instructed by a resolution of the Senate "to inquire whether the Hon. Samuel S. Phelps is entitled to retain a seat in the Senate of the United States," submitted a report (No. 34), also the views of the minority of the committee, in relation to the subject; which were ordered to be printed. The Senate proceeded to consider the said report, and. On motion by Mr. Pettit, Ordered, That the further consideration thereof be postponed to, and made the order of the day for, Wednesday next. SAMUEL S. PHELPS. 17 EEPOET OF COMMITTEE. [The committee consisted of Messrs. Butler (chairman), Toucey, Bayard, Greyer, Pettit, and Toombs.] In the Senate of the United States. Janxjaby 16, 1854. — Ordered to be printed. Mr. Pettit made the following report; which was considered, postponed to, and made the special order for the day for, Wednesday next, January 18, 1854: The Committee on the Judiciary, to whom was referred a resolution of the Senate of the 4th of January, 1854, have had the same under consideration, and have directed me to make the following report: The following is the resolution referred to the committee, to wit: "Whereas the Hon. Samuel S. Phelps was appointed by his excellency the governor of Vermont, in the recess of the legislature of that State, to fill a vacancy in the Senate of the United States which had happened by the death of the Hon. William Upham, a Senator, whose term of six years would have continued tintil the 4th of March, 1855; and ' ' Whereas it is tmderstood that since that temporary appointment was made the legis- lature of Vermont has been convened at their regular session, and has adjourned without filling such vacancy: Therefore, ^^ Resolved, That the Committee on the Judiciary inquire whether the Hon. Samuel S. Phelps is entitled to retain a seat in the Senate of the United States." The clauses of the Constitution which bear upon this question may be found in the third section of the first article of that instrument, and reaid as follows: ' ' The Senate of the United States shall be composed of two Senators from each State, chosen by the legislature thereof, for six years; and each Senator shall have one vote. " Immediately after they shall be assembled, in consequence of the first election, they shall be divided, as equally as may be, into three classes. The seats of the Senators of the first class shall be vacated at the expiration of the second year, of the second class at the expiration of the fourth year, and of the third class at the expiration of the sixth year, so that one-third may be chosen every second year; and if vacancies happen by resignation or otherwise during the recess of the legislature of any State the executive thereof may make temporary appointments until the next meeting of the legislature, which shall then fill such vacancies. " The committee do not think that the last clause of Article V of the Constitution, which provides "that no State, without its consent, shall be deprived of its equal suf- frage in the Senate, ' ' has any bearing on this question. If a State refuses to appoint two Senators by some means known to the Constitution, it does consent to be deprived of its equal suffrage in the Senate. And in such case the Senate cannot supply the deficiency by creating a Senator; but it can determine upon the validity of his appointment, whether it comes from the legislature or the executive of the State. There are two modes by which Senators may he appointed, and whether appointed by the one or the other mode, they possess the same power and exercise the same rights and privileges and receive the same emoluments. These modes may be called primary and contingent. The first rests with the legislature and the second with the executive of the State, when a vacancy happens in the recess of the legislature. The committee are of opinion that the framers of the Constitution, in providing these two modes by which Senators may be appointed, had in view the obvious propriety, if not necessity, of having two Senators from each State at all times in commission and ready for public service. The committee do not think that the language above quoted, "the executive thereof may make temporary appointments until the next meeting of the legislature," is very perspicuous, definite, or concise in its phraseology or meaning, but, on the contrary, it is subject to two constructions. By one of these constructions both the power to appoint and the term of office of the appointee would terminate ujion the meeting of the legislature, and thus leave the State for. some days, until the legisla- ture could appoint and the new Senator reach the seat of government, without an ' ' equal suffrage in the Senate," a condition which the committee think it was the intention of the constitutional convention to avoid. ' ' The executive thereof may make temporary appointments until the next meeting of the legislature." What may be Aoug until the next meeting of the legislature ? May appointments be made until that time? Or may the appointee hold his office until that period and no longer ? Or do both determine on the next meeting of the legislature? The committee think it is a limitation upon the power of the executive to make ap- pointments in the recess of the legislature, and which cannot be exercised after its next meeting; but that the force or effect of such appointment, viz, the commission and ofBce, continue until superseded by the action of the primary appointing power, or the expira- SEC 2 18 SENATE ELECTION CASES. tion of the Senatorial term. In giving this exposition to this provision of the Constitu- tion, the committee believes it has consulted and gives effect to the spirit of that instru- ment, and has found the true intention and design of its framers, that the Senate Aould be composed of two Senators from each State. On the 6th of June, 1809, the Senate adopted the following resolution: "Besolved, That the Hon. Samuel Smith, a Senator appointed by the executive of Maryland to fill the vacancy which happened in the office of Senator for that State, 'is entitled to hold his seat in the Senate of the United States during the session of the legislature of Maryland, which, by the proclamation of the governor of said State, was to commence on the 5th day of the present month of June, uiUess said legislature shall fill such vacancy by the appointment of a Senator, and this Senate be olficially informed thereof." The Senate, in this instance, after able and full debate, has solemnly determined that the office of a Senator appointed by the executive does not end on the next meeting of the legislature, but that it may continue during its session. The construction that the office does not terminate on the meeting of the legislature has received the uniform approval of the Senate from that time till this; for in all in- stances (and they are numerous) the Senator appointed by the executive has not only held his office until the next meeting of the legislature, but vMil his successor was ap- pointed and made his appearance here to qualify. In the late cases of Mr. Winthrop and Mr. Eantoul, of Massachusetts, and of Mr. Meriwether and Mr. Dixon, of Kentucliy, many able Senators, to whose opinions great deference is due, expressed their convictions that it was a limitation of time within which the appointment must be made, but that the office continued until superseded by the legislature. If, then, the office does not terminate on the meeting of the legislature, when will it terminate? Can meeting be construed into end, dissolution, or adjournment? Your committee think not. With these adjudications of the Senate, and the exposition in debate by able Senators, and in view of the propriety if not the necessity of having a full representation from each State in the Senate before us, and believing the language of the Constitution war- rants the interpretation we have given it, your committee have come to the conclusion that the Hon. Samuel S. Phelps is entitled to retain his seat, and offer for adoption the fol- lowing resolution: Besolved, That the Hon. Samuel S. Phelps is .entitled to retain his seat in the Senate of the United States. MINOEITY EKPOET. The Committee on the Judiciary, to whom was referred the resolution of the Senate of the 4th instant, which reads as follows — "Besolved, That the Committee on the Judiciary inquire whether the Hon. Samuel S. Phelps is entitled to a seat in the Senate of the United States ' ' — Has reported thereon. As the undersigned dissent from the conclusions of a majority of their colleagues, they ask leave to submit the following report of the minority. The facts upon which the res- olution was founded are as follows: That the Hon. Samuel S. Phelps was appointed by his excellency the governor of the State of Vermont, in the recess of the legislature of that State, to fill a vacancy in the Senate of the United States which had occurred by the death of the Hon. William Up- ham, a Senator, whose term of six years would have continued until the 4th March, 1855; and that since the temporary appointment by the governor of said State, the legis- lature of Vermont has been convened at their annual session, and adjourned vrithout filling the vacancy, as prescribed by the Constitution, which reads as follows: "And if vacancies happen by resignation or otherwise, during the recess of the legis- lature of any State, the executive thereof may make temporary appointments until the next meeting of the legislature, which shall then fill such vacancies." The question presented to the committee by the foregoing resolution may be thus stated: What shall be the operation of an appointment of a Senator made by the gov- ernor of a State in the recess of its legislature where the legislature has met and failed to fill the vacancy by an election? The decision of this question depends upon the construction of the above words of the Constitution. If the power to fill the vacancy is devolved exchmvely upon the legisla- ture at its next meeting, then it would follow that the appointing power of the execu- tive would be exhausted; and the Senator appointed by him could, according to prece- dent, hold his seat only during the session of the legislature; or, in other words his commission would expire at the adjournment of the legislature. SAMUEL S. PHELPS. 19 Tlie question may be presented in another point of view, which might possibly lead to a different conclusion. If the legislature has merely the potential capacity to fill the vacancy according to its discretion, then a failure to perform this function might leave the executive appointment good to fill a continuing vacancy. This reduces the question to this proposition, viz: Do the words of the Constitution impose a limitation upon the ofdce or the appointing power ? Before stating the conclusion of the undersigned, it may he proper to cite the prece- dents which are applicable to the question under consideration. The first case upon record is as follows: George Read, a Senator from the State of Dela- ware, resigned his seat upon the 18th day of September, 1793, aud during the recess of the legislature of said State. The legislature of the said State met in January, and ad- journed in February, 1794. Upon the 19th day of March, and subsequent to the adjourn- ment of the said legislature, Kensey Johns was appointed by the governor of said State to fill the vacancy occasioned by the resignation aforesaid. The Senate decided — That Kensey Johns was not entitled to a seat in the Senate of the United States, as a session of the legislature of the said State had intervened between the resignation of the said George Read and the appointment of the said Kensey Johns. Mr. Eaton, from the select committee to whom was referred, on the 5th instant, the motion "that Mr. Lanman be admitted to take the oath required by the Constitution, " together with the credentials of Mr. Lanman, submitted the following report: "That Mr. Lanman's term of service in the Senate expired on the 3d March. On the 4th he presented to the Senate a certificate, regularly and properly authenticated, from Oliver Wolcott, governor of the State of Connecticut, setting forth that the Presi- dent of the United States had desired the Senate to convene on the 4th day of March, and had caused official notice of that fact to be communicated to him." The certificate of appointment is dated the 8th of February, 1825, subsequent to the time of tfie notification to him by the President. The certificate lurther recites that at the time of its execution the legislature of the State was not in session, and would not be until the month of May. The Senate decided that Mr. Lanman was not entitled to a seat in the Senate of the United States. In May, 1809, the President of the Senate laid before that body a letter from the Hon. Samuel Smith, of Maryland, stating that, being appointed by the executive of that State a Senator, in conformity with the Constitution, until the next meeting of the legisla- ture, which will take place on the 5th day of June next, he submits to the determina- tion of the Senate the question whether an appointment under the executive of Mary- land to represent that State in the Senate of the United States will, or will not, cease on the first day of the meeting of the legislature thereof. The Senate decided that the Hon. Samuel Smith, a Senator appointed to fiUavacancy. was entitled to hold his seat in the Senate of the United States during the session of the legislature of Maryland, which, by the proclamation of the governor of said State, was to convene on the 5th day of the present month of June, unless said legislature shall fill such vacancy by the appointment of a Senator, and the Senate be officially informed thereof. The chairman of the Committee on the Judiciary, at the second session of the Thirty- first Congress, to whom was referred the resolution of the Senate directing said committee to inquire and report at what period the term of service of a Senator appointed by the executive of a State, during the recess of the legislature thereof, rightfully expires, sub- mitted the following report: "The question presented by the resolution turns mainly upon the construction of the clause of Article XVIII, section 2, of the Constitution of the United States, which provides that ' if vacancies happen by resignation or otherwise, during the recess of the legisla- ture of any State, the executive thereof may make temporary appointments until the next meeting of the legislature, which shall fill such vacancies.'" Your committee are of the opinion that the sitting member, under executive appoint- ment, has a right to occupy his seat until the vacancy shall be filled by the legislature of the State of which he is a Senator, during the next meeting thereof To fill such vacancy it is not only necessary to make an election, but that the person elected shall accept the appointment. And your committee are further of the opinion that such ac- ceptance should appear by the presentation to the Senate of the credentials of the mem- ber-elect, or other official information of the fact, at which time the office of the sitting member terminates. When the member-elect is present and ready to qualify, his express acceptance is at once made known; and when his credentials are presented in his absence his acceptance may be fairly implied. Perhaps it would have been as well if the strict and literal meaning of the words, "until the next meeting of the legislature," had been observed on the first occasion in which their construction was brought in question; that would have had the merit of 20 SENATE ELECTION CASES. certainty, but a certainty that might have been too severe for the true and liberal m ■ tendment of the framers of the Constitution. They certainly did mean to say that an executive appointment should terminate when legislative jurisdiction shall commence or be exercised. To give this severe construction to the words quoted would in all cases leave a State ilnrepresented for a time, that depending on legislative action; rather than lead to that result the Senate, under the precedents quoted, seem to have regarded the ' ' next meeting of the legislature ' ' as synonymous with the next session of the legislature, during which time the member under executive appointment might hold his seat, unless it should be filled by an election before the termination of a session; and this was prob- ably in analogy to that provision of the Federal Constitution by which power is vested in the President ' ' to fill up all vacancies that may happen during the recess of the Senate by granting commissions which shall expire at the end of their next session. As there was no reference to a committee, and no reported debate in the case of Mr. Smith, of Maryland, which made the precedent, the essential reasons which governed the judgment of the Senate are not given; the case, however, seems to have been well considered. There are two considerations which seem to have entered into that judg- ment: First, that the State legislature, after their meeting, should have an opportunity of consultation in making a choice of Senator, and the State, during such term of consulta- tion, should not be deprived of a representative in the Senate. The utmost limit con- templated for the exercise of this legislative jurisdiction was the term of the sitting of the legislature. The second consideration was a confident assumption that the office would be filled during such term. The idea that a session would pass over without an election was not in the mind of the Senate. The Senate went very far when it gave an interpretation to the words referred to beyond their literal meaning, limiting the tenure of office of the sitting member to the day of the meeting of the legislature. This inet with a decided opposition from a respectable minority, and in subsequent cases distin- guished Senators maintained the same view of the Constitution. By the report of the com- mittee we are required to recognize as authority and to enlarge this liberality of con- struction — to say that the words " until the next meeting of the legislature" may be construed to mean not only until and during the session of the next legislature, but beyond the next meeting of the legislature; in other terms, that until the next meeting, &c. , may operate under the authority of precedent to give the sitting member a right to hold his seat beyond the meeting of the legislature. ' We cannot agree that by the au- thority of any precedent these words "until and beyond" shall have such a meaning as will control the import of the Constitution, both in its spirit and letter. The Senate of the United States is composed of organized constituencies, the State legislatures; to them belong the power primarily of electing their Senators, when they are in session, at the l&ppening of the vacancy, and at their first meeting when it happens in their recess, and on them devolves the exclusive jurisdiction of filling such vacancies. Their right and authority to fill or supply vacancies which have been temporarily filled by executive appointment areas absolute and exclusive as was their power in an original election. When their power is brought into existence it must supersede all others, with this qualification, and that according to precedent, that they have a session to make the choice. In our view it does not depend on the actual exertion of the power to elect, but on its existence. A Senator, under an executive appointment, may or may not rep- resent the political views of his State; he maybe the mere personal favorite of the gov- ernor. The Senate, as far as practicable, should be made to represent its constitutional constituency, and in this respect should preserve the republican feature of our Union. In nothing that is said here would we have it inferred that we regard the sitting mem- ber whose case is before us as one who may not claim his seat on high grounds and re- spectable authority. The sanction of a majority of the committee, the opinions of emi- nent jurists out of this body, go far to sustain his claim. But from the views of the undersigned above presented we do not think the Hon. Samuel S. Phelps is entitled to hold his seat in this body. A. P. BUTLEE. J. A. BAYARD. Wednesday January 18, 1854. The Senate resumed the consideration of the report of the Committee on the Judiciary on the right of the Hon. S. S. Phelps to a seat in the Senate; and, On motion of Mr. Pettit, Ordered, That the further con.sideration thereof be postponed until Wednesday next. [Some remarks on the postponement of the resolution on account of sickness of Mr. Phelps are found on pages 196, 197 of the Congressional Globe referred to in the hesid- note.] SAMUEL S. PHELPS. 21 Thursday, January 26, 1854. The Senate resumed the consideration of the resolution reported by the Committee on the Judiciary respecting the right of the Hon. Samuel S. Phelps to a seat in the Senate ; and, After debate, On motion by Mr. Butler, Ordered, i That it lie on the table. [The debateon the subject on this day is found on pages 250-252 of the Globe referred to. It includes remarks by Mr. Pettit, stating the position of the committee.] Wbdnesday, February 1, 1854. The Senate resumed the consideration of the resolution reported by the Committee on the Judiciary in relation to the right of the Hon. Samuel S. Phelps to a seat in the Sen- ate; and. After debate, On motion by Mr. Butler, the Senate adjourned. [The debate is found on pages 303, 304 of the Globe referred to. Mr. Bayard's speech on this day against the resolution reported by the majority of the committee is reported in the Appendix to the Congressional Globe referred to in the head-note.] ThuesdAY, February 2, 1854. The Senate resumed the consideration of the resolution reported by the Committee on the Judiciary in relation to the right of the Hon. Salnuel S. Phelps to a seat in the Sen- ate; and, After debate. On motion by Mr. Pratt, Ordered, That the further consideration thereof be postponed until Thursday next, the 9th instant. [The debate is found on pages 314-318 of the Congressional Globe referred to. It in- cludes remarks by Mr. Butler, stating the position of the minority of the committee. A speech made by Mr. Phelps on this day in vindication of his title to the seat is found on pages 356-359 of the Appendix to the Congressional Globe referred. to.] Wednesday, March 8, 1854. The Senate resumed the consideration of the resolution reported by the Committee on the Judiciary on the right of the Hon. Samuel S. Phelps to a seat in the Senate; and, After debate, On motion by -Mr. Foot, Ordered, That the further consideration thereof be postponed until to-morrow. [The debate, consisting largely of remarks by Mr. Phelps, is found on pages 359-365 of the Appendix to the Congressional Globe referred to.] Monday, MarchlS, 1854. The Senate resumed the consideration of the resolution reported by the Committee on the Judiciary on the right of the Hon. Samuel S. Phelps to a seat in the Senate; and, After debate, , On motion. Ordered, That the further consideration thereof be postponed until to-morrow. [The debate is found on page 610 of the Congressional Globe. Mr. Phelps's remarks are on pages 365-369 of the Appendix, and Mr. Badger's reply to a portion of Mr. Phelps's argument is on pages 369-371 of the Appendix.] Wednesday, March 15, 1854. The Senate resumed the consideration of the resolution reported by the Committee on the Judiciary on the right of the Hon. Samuel S. Phelps to a seat in the Senate; and, After debate, ■ On motion by Mr. Mason, Ordered, That the further consideration thereof be postponed until to-morrow. [A speech by Mr. Foot, in vindication of the right of his colleague to the seat, which was the only speech made on the subject this day, is found on pages 630-632 of the Congressional Globe. 1 Thursday, March 16, 1854. The Senate resumed the consideration of the resolution reported by the Committee on the Judiciary on the right of the Hon. Samuel S. Phelps to a seat in the Senate; and, After debate, on the question of agreeing thereto, it was determined in the negative- yeas 12, nays 26. 22 SENATE ELECTION CASES. On motion by Mr. Foot, the yeas and nays being desired by one-fifth of the Senators present, Those who voted in the affirmative are Messrs. Clayton, Dodge of Iowa, Everett, Fes- senden, Foot, Geyer, Morton, Norris, Sebastian, Wade, Walker, and Williams. Those who voted in the negative are Messrs. Adams, Allen, Atchison, Badger, Bayard, Brodhead. Brown, Butler, Clay, Dodge of Wisconsin, Douglas, Evans, Fish, Fitzpatncj^, Hamlin, Hunter, Mason, Pearoe, Pratt, Eusk, Seward, Shields, SlideU, Stuart, Sumner, and Toucey. So the resolution was not agreed to; and it was Resolved, That the Hon. Samuel S. Phelps is not entitled to retain his seat in the Sen- ate of the United States. COMPENSATION OF ME. PHBLPS. Mr. Badger submitted the following resolution; which was read the first and second times, by unanimous consent, and considered as in Committee of the Whole: "Besolved, That there be paid out of the contingent fund of the Senate, to the Hon. Samuel S. Phelps, a sum equal to the amount of mileage and per diem compensation of a Senator from the day of his attendance at the present session to this day, inclu- sive." And no amendment being made, it was reported to the Senate. The resolution was read the third time by unanimous consent. Besolved, That it pass. [The debate is found on pages 639-646 of the Congressional Globe.] Friday, March 17, 1854. On motion by Mr. Foot, the vote on passing the resolution, submitted yesterday by Mr. Badger, to pay to the Hon. Samuel S. Phelps his mileage and per diem, was recon- sidered. The Senate resumed the consideration of the said resolution ; and, having been amended on the motion of Mr. Foot, it was agreed to, as follows: "Besolved, That th?re be paid to the Hon. Samuel S. Phelps the amount of mileage and per diem compensation of a Senator from the day of his attendance at the present session to this day, inclusive." [Brief remarks are found on page 676 of the Congressional Globe.] JARED W. WILLIAMS. 23 [Thirty- third Congress — First session.] JAEED W. WILLIAMS, Senator from New Hampshire from December 12, 1853, to August 4, 1854. Mr. Williams was appointed to fill a vacancy happening; by the death of Charles G. Atherton. After his appointment the legislature mot and adjourned without electing a Senator to fill the un- expired term. The circumstances of the meeting and adjournment of the legislature were as fol- lows : The constitution of New Hampshire provided that " the senate and house shall assemble every year on the first Wednesday of June, and at such other times as they may judge necessary ; and shall dissolve and be dissolved seven days next preceding the said first Wednesday of June." It further provided (article 50, part 2)that "the governor, with advice of council, shall have full power and authority during the sessions of the general court to adjourn or prorogue it to any time the two houses may desire, and to call it together sooner than the time to which it may be adjourned or prorogued, if the welfare of the State should require the same." July 15, 1854, the governor, in a communication to the legislature, said: "Having been informed by a joint committee of both branches of the legislature that you have finished the business before you, and are ready to ad- journ, by the authority vested in me, I do hereby adjourn the legislature to thcr last Wednesday of May next." The Judiciary Committee of the United States Senate reported that this was an ad- journment "sine die, in the legal import of the term," and that " the right of representation under appointment " had expired. Mr. Williams claimed that even if this were so, he was entitled to his seat, notwithstanding precedents to the contrary ; but claimed further that this was an adjourn- ment to a day certain, and not an adjournment ^ne die. The Senate concurred in the report of the committee, and " Resolved, Thatthe ' rightol representation under appointment' had expired." The history of the case here given consists of a transcript of the proceedings oftheSenate relating to it from the Senate Journal, 1st sess. 33d Cong,, 1853-'54, together with the report of the committee from Senate Reports, 1st sess. 33d Cong., vol. 2, 1853-'54, No. 385. The debate in the case, which is brief, is found on pages 2208-2211 of the Congressional Globe, vol. 28, part 3, 1st sess. 33d Cong. ■ Monday, December 12, 1853. Mr. Waller presented the credentials of the Hon. JaredW. Williams, appointed a Sena- tor by the executive of the State of New Hampshire to fill the vacancy occasioned by the death of the Hon. Charles G. Atherton, which were read; and the oath prescribed by law having been administered to Mr. Williams, he took his seat in the Senate. Tuesday, July 25, 1854. Mr. Mallory submitted the following resolution; which was considered by unanimous consent, and agreed to: " Whereas the Hon. Jared W. Williams was appointed by his excellency the governor of New Hampshire, in the recess of the legislature of that State, to fill a vacancy in the Senate of the United States which had happened by the death of the Hon. Charles Gr. Atherton, a Senator, whose term of service would have continued until the 4th of March, 1859; and "Whereas it is understood that since that temporary appointment was made the legislature of New Hampshire has been convened at their regular session and has ad- journed to the last Wednesday of May next without filling such vacancy, and that said State still claims a right of representation tinder said appointment, which the appointee is not at liberty to surrender by his act without the action of the Senate: At his re- quest, therefore, "Resolved, That the subject be referred to the Committee on the Judiciary to inquire into the facts connected with it and to make such report as they deem proper to enable the Senate to determine whether the right of representation under said appointment has expired." Wednesday, August 2, 1854. Mr. Butler, from the Committee on the Judiciary, who were directed by a resolution of the Senate to inquire into and report on the right of the Hon. Jared W. Williams, appointed a Senator by the governor of New Hampshire, to continue to hold his seat under that appointment, submitted a report (No. 385) thereon; which was ordered to be printed. EEPOET OF COMMITTEE. [The committee consisted of Messrs. Butler (chairman), Toucey, Bayard, Geyer, Pet- tit, and Toombs.] In the Senate of the United States. August 2, 1854.-70rdered to be printed. Mr. Butler made the following report: The Committee on the Judiciary, to whom was referred the following preamble and resolution of the Senate, have had the same under consideration, and report: "Whereas the Hon. Jared W. Williams was appointed by his excellency the governor 24 SENATE ELECTION CASES. of New Hampshire, in the recess of the legislature of that State, to fill a vacancy in the Senate of the United States which had happened by the death of theHon. CharlesGr. Ath- erton, a Senator, whose term of service would have continued till the 4th of March, 1859; and "Whereas it is understood that since that temporary appointment was made the leg- islature of New Hampshire has been convened at their regular session, and has adj oumecl to the last Wednesday of May next, without filling such vacancy, and that said State still claims a right of representation under said appointment, which the appointee is not at liberty to surrender by his act without the action of the Senate: At his request, there- fore, "■Resolved, That the subject be referred to the Committee on the Judiciary, to inquire into the facts connected with it, and to make such report as they deem proper to enable the Senate to determine whether the right of representation under said appointment has expired." Under this resolution the committee are required to inquire into the facts connected with the case, and to make such report as they deem proper, to enable the Senate to determine whether the right of representation tinder said appointment had expired. As the question to be determined must depend in a great measure on the proceedings of the legislature and constitution of New Hampshire, the committee submit the follow- ing as a part of their reportj having a bearing on the case: COMMUNICATIOBT FEOM THE G-OVEBNOE TO THE LBGISLATUEE. To the senate and house of representatives : I have signed all the bills and resolutions which you have passed the present session aud presented for my approval (except the bills and resolutions which I have returned to the house of representatives with my objection thereto), and having heen informed by a joint committee of both branches of the legislature that you have finished the busi- ness before you and are ready to adjourn, by the authority vested in me I do hereby ad- iourn the legislature to the last Wednesday of May next. N. B. BAKER. Council Chamber, July 15, 1854. ' ' The sena.te and house shall assemble every year on the first Wednesday of Jtme, and at such other times as they may judge necessary; and shall dissolve and be dissolved seven days next preceding the said first Wednesday of June, and shall be styled the gen- eral court of New Hampshire." — Constitution of New Hampshire, page 23. From the language of the governor's communication to the legislature it seems to have been his j udgment that the session had closed ; and from the language of the constitution it would appear that it will have terminated on the day mentioned, as by another pro- vision of the constitution the governor on the same day is required to dissolve the legis- lature. In this view of the subject in proprio vigore, the legislature had no power of as- sembling from the time of its adjournment, as announced by the governor, until the last Wednesday of May next, when its existence terminated. There was a power in the governor, sKould the general welfare require it, to call the legislature together as an existing body. But when so called together what would have been the character of such a meeting ? Would it not have been a distinct session, car- rying vrith its acts and doings all the incidents of a separate session? Such would seem to be a fair inference. This being conceded, then it would follow that the late legisla- ture did adjourn sine die in the legal import of the term. If this is a legitimate conclu- sion this case cannot in any particular be distinguished from that decided by the Senate, in the case of the Hon. Samuel S. Phelps, a Senator from Vermont, and the committee refer to that case as the authority for their conclusion in the case under consideration. In response to the resolution the committee are of opinion that "the right of repre- sentation under the appointment " has expired. Thttksday, August 3, 1854. The Senate proceeded to consider the report of the Committee on the Judiciary on the right of the Hon. Jared W. Williams, appointed a Senator by the governor of the State of New Hampshire, to continue to hold his seat in the Senate under that appointment: and, After debate, in concurrence therewith, Resolved, That "the right of representation under appointment" had expired. [No debate of any importance is recorded in the Congressional Globe.] JAEED W. WILLIAMS. 25 Friday, August 4, 1854. On motioii by Mr. Dodge, of Iowa, to reconsider the vote agreeing to the report of the Committee on the Judiciary on the right of the Hon. Jared W. Williams to hold his seat in the Senate, under his present appointment, as a Senator from New Hampshire, it was determined in the affirmative — ^yeaa 19, nays 16. On motion by Mr. Dodge, of Iowa, the yeas and nays being desired by one-flflh of the Senators present. Those who voted in the affirmative are Mess.rs. Atchison, Bayard, Bell, Brodhead, Butler, Chase, Dawson, Dodge of Wisconsin, Dodge of Iowa, Douglas, Evans, Fitzpat- rick, Houston, Johnson, Jones of Iowa, Mallory, Mason, Norris, and Weller. Those who voted in the negative are Messrs. Allen, Benjamin, Bright, Cooper, Fish, Cfillette, Hunter, James, Jones of Tennessee, Pratt, Rockwell, Seward, Stuart, Thomp- son of Kfentucky, Toombs, and Wade. So the Senate proceeded to consider the said report. On motion by Mr. Cass that the further consideration of the report be postponed until the first Monday in December next, it was determined in the negative — yeas 11, nays 37. On motion by Mr. Atchison, the yeas and nays being desired by one-fifth' of the Sena- tors present, Those who voted in the affirmative are Messrs. Atchison, Dodge of Wisconsin, Dodge of Iowa, Douglas, Houston, Johnson, Jones of Iowa, Mallory, Pettit, Sebastian, and Toombs. Those who voted in the negative are Messrs. Allen, Bayard, Benjamin, Bright, Brod- head, Brown, Butler, Cass, Chase, Clay, Cooper, Dawson, Evans, Fessenden, Fish, Foot, Geyer, Gillette, Hunter, James, Jones of Tennessee, Mason, Morton, Pearce, Pratt, Rockwell, Eusk, Seward, Slidell, Stuart, Sumner, Thompson of Kentucky, Thomson of New Jersey, Toucey, Wade, Walker, and Weller. After debate, in concurrence with the report, It was Besolved, That "the right of representation under the appointment " had expired. [It appears from the debate referred to in the head-note that the vote was reconsidered in order to allow Mr. Williams, who had been absent when the subject was first con- sidered, to address the Senate.] 26 SENATE ELECTION CASES. [Forty-sixth Congress — First session.] OHAELES H. BELL, Senator from New SampsMre from April 10, 1879, till June 20, 1879. March 18, 1879, the credentials of Mr. Bell, appointed by the governor to fill a vacancy happening during the recess of the legislature, by the expiration of the term of Bainbridge Wadleigh, March 3, were presented. March 19, the credentials were referred to the Committee on Privileges and Elections. April 2, 1879, the committee reported that by reason of a change in the State constitu- tion in 1878, two legislatures were chosen in that year, one, under the old constitution, m March, whose term of' office began in June, 1878, and would terminate in May, 1879, and the other, under the new constitution, chosen in November to serve for two years, whose term would begin m J *^"®j 1879 ; that In the Forty-fifth Congress this committee had reported to the Senate that the last-nainea legislature was the one entitled to elect under the act of July 25, 1866 ; that the vacancy arising under these circumstances was not a vacancy " happening by resignation or otherwise during the recess of the legislature of any State" (Article I, section 3, of the Constitution) ; that until the year 1817 persons appointed to fill vacancies arising from the expiration of terms of service had been admitted to seats ; but that in 1825, in the Lanman case (see page 5), " it was held, and, in the opin- ion of this committee, correctly, that the Constitution conferred upon the legislature, and upon it alone, the power to appoint a Senator for the beginning of a new term" ; that this decision had been regarded by the Senate as final ; that the case of Mr. Sevier (see page 7), in which it was claimed that the Senate had departed from the rule in Lanman's case, was in all material points dif- ferent from the one under consideration, in that "the time when Mr. Sevier was to go out of ottioe under his election was decided by lot." The committee recommended the adoption of a resolution that Mr. Bell was not entitled to the seat. A minority report held that there was no historical evi- dence to show whether the Lanman case decided that a governor could not fill a vacancy ha,ppen- ing at the beginning of a term, or only that a governor could not lawfully make an appointment in anticipation before the vacancy had occurred ; that the report in the Sevier case stated that the Lanman case proceeded upon the former ground ; but that, with the exception of that stateinent, there is no indication that the Senate ever doubted the correctness of the construction of the Con- stitution that in a case where a Senator has been appointed by the executive after the happening of a vacancy by the expiration of the term without an election of a successor by the legislature, the person so appointed is entitled to the seat. April 10, the resolution reported by the committee was amended by striking out the word "not," and the Senate resolved that Mr. Bell was entitled to the seat. The history of the case here given consists of a transcript of the proceedings of the Senate relat- ing to it from the Senate Journal, 46th Cong., 1st sess., and the report of the committee from Senate Keports, 46th Cong., 1st sess.. No. 1. Special references to the debates of each day, which are found in the Congressional Becord, voL ix, part 1, are inserted below. Tuesday, Mareli 18, 1879. The Vice-President laid before the Senate the credentials of Charles H. Bell, appointed a Senator by the governor of the State of New Hampshire to fill the vacancy happening in the Senate of the United States by the expiration of the term of Bainbridge Wadleigh on March 3, 1879, during the recess of the legislature of said State; which were read. On motion by Mr. Wsillace, • Ordered, That the credentials lie on the table. [The debate is found on pages 2, 3 of the Congressional Record referred to in the head-note. In the remarks of Mr. Bell will be found a list of precedents.] Wednesday, March 19, 1879. On motion by Mr. Wallace, Ordered, That the credentials of Charles H. Bell be referred to the Committee on Priv- ileges and Elections with instructions to report at as early a day as practicable. Wednesday, April 2, 1879. Mr. Saulsbury, from the Committee on Privileges and Elections, to whom were referred the credentials of Charles H. Bell, appoiuted a Senator by the governor of the State of New Hampshire, submitted a report (No. 1) thereon accompanied by the following res- olution: "Mesolved, That Hon. Charles H. Bell is not entitled to a seat as a Senator by virtue of the appointment by the executive of New Hampshire." Mr. Hoar obtained leave to submit the views of a minority of the Committee on Priv- ileges and Elections upon the credentials of Charles H. Bell; which were ordered to be printed to accompany the foregoing report. CHAELES H. BELL. 27 EEPOET OF COMMITTEE. [The committee consisted of Messrs. Saulsbuiy (chairman), Hill of Georgia, Keman, Bailey, Houston, "Vance, Cameron of Wisconsin, Hoar, and Bigalls.] In the Senate op the United States. Apeil 2, 1879. — Ordered to lie on the table and be printed. Mr. Saulsbury, from the Committee on Privileges and Elections, submitted the follow- ing report: The Committee on Privileges and Elections, to whom were referred the credentials of the Hon. Charles H. Bell, claiming a seat in the Senate as a Senator from the State of New Hampshire, have had the same under consideration, and ask leave to make the fol- lowing report: The term of Bainbridge Wadleigh, a Senator from the State of New Hampshire, ex- pired by constitutional limitation on the 3d day of March, 1879, in a recess of the legis- lature, and on the 13th day of March, 1879, Mr. Bell was appointed in his place by the executive. By reason of a change in the constitution of that State, which took effect in October, 1878, two legislatures were chosen in that year, one, under the old constitution, in March, whose term of office commenced in June, 1878, and will terminate in May, 1879; the other, under the new constitution, was chosen in November to serve for two years, the term commencing in June, 1879. The Committee on Privileges and Elections of the Senate in the Forty-fifth Congress, to whom was referred the question which of these two bodies had the right to choose a successor to Mr. Wadleigh, was of opinion, and so reported to the Senate, that under the act of 1866 (Revised Statues, section 14) the last-named legislature was entitled to elect, because it was the legislature chosen next preceding the expiration of Mr. Wadleigh's term of service. In the opinion Of the committee this report, and the action of the Sen- ate in adopting it, are not important in the settlement of the question now presented. The Constitution of the United States, Article I, section 3, provides as follows: ' ' The Senate of the United States shall be composed of two Senators from each State, chosen by the legislature thereof, for six years, and each Senator shall have one vote. " Immediately after they shall be assembled in consequence of the first election, they shall be divided as equally as may be into three classes. The seats of the Senators of the first class shall be vacated at the expiration of the second year, of the second class at the expiration of the fourth year, and of the third class at the expiration of the sixth year, so that one-third may be chosen every second year; and if vacancies happen by resignation, or otherwise, during the recess of the legislature of any State, the exec- utive thereof may make temporary appointments untU the next meeting of the legislar ture, which shall then fill such vacancies." It has been noticed that this claimant bases his right to a seat in the Senate, not upon the fact that a term filled by the legislature of New Hampshire had become vacant during a recess of the legislature, but upon the fact that the executive claims the right to make a temporary appointment at the beginning of a term which the legislature has not under- taken to fill. The committee cannot find in the Constitution any sufficient warrant for this claim. If we look at the provision authorizing the governor to make temporary appointments independently of its connection with the rest of the section, we think it is manifest that the authority is limited to filling vacancies which happen in a term which had been pre- viously filled by the legislature. If it was intended to vest in the executive the power to make temporary appointments to terms for which no person had been chosen by the legislature, why should the words "happen by resignation or otherwise" have been added to the word ' ' vacancies ' ' ? They certainly did not render it more comprehensive, and must have been designed to limit and restrict its meaning to vacancies occurring from accident or some unforeseeu event. If any doubt, however, existed as to the mean- ing of the language referred to, when considered unconnected with the rest of the section, such doubts would be removed by construing the provisions of the section together. Ap- plying to them the rules recognized for the construction of statutes and constitutional provisions, the committee are forced to the conclusion that the legislature alone is em- powered to choose a Senator upon the expiration of a Senatorial term, and that the exec- utive can only make temporary appointments to fill vacancies occurring in ai term which has been previously filled. It is well known that in the convention which framed the Constitution this subject received careful consideration. After it had been determined that the States should have equal representation in the Senate, the manner of choosing Senators was considered; various propositions were submitted, and, among others, ap- pointments by the executiyfes of the States. Finally it was determined to vest in the 28 SENATE ELECTION CASES. legislature the power of choosing Senators, and in the executive the power to make tem- porary appointments, if vacancies should happen in the oflce after it had been filled, until such time as the legislature could again act. This, it seems to the committee, vras the obvious intent of the Constitution, gathered not only from the language of the entire section under consideration, but also from the debates in the convention in reference to its provisions. Nothing in the history of the Senate for the last fifty years is at variance with the views here presented. The records of the Senate show that down to the year 1817 a number of appointments were made by State executives of persons to succeed Senators whose terms of service had expired, and that the persons so appointed were admitted to seats in the Senate. The first case was that of William Cocke, of the State of Tennessee. This State was admitted into the Union in 1796. In the month of August of that year, William Cocke and William Blount were chosen Senators in Congress by the legis- lature. By lot they were assigned to the first and second classes of the three classes directed to be formed by thp article of the Constitution above quoted, and Mr. Cocke having drawn the term which expired on the 3d day of March, 1797, during a recess of the legislature, was appointed by the governor to be his own successor on the 22d of April, 1797, and he was admitted to a seat without objection. The second case was that of Uriah Trjicy, a Senator from the State of Connecticut, whose term expired on the 3d of March, 1801. Under an appointment by the governor he was admitted to a seat on the 4th day of March, 1801, after a heated discussion, and by a party vote of 13 to 10. This precedent was followed on the next day by the admission of Mr. Hindman, of Maryland; by the admission of Mr. Condit, of New Jersey, in 1803; Mr. Anderson, of Tennessee, and Mr. Smith, of Maryland, in 1809; Mr. Cutts, of New Hampshire, in 1813; and Mr. Williams, of Tennessee, in 1817; all executive appointments to fill places made vacant by the expiration of full terms of service during recesses of legislatures, and all were admitted without discussion and without objection. But in 1825 the term of James Lanman, of Connecticut, expired during a recess of the legislature. In anticipation of the vacancy he had been appointed by the governor as his own successor. His credentials were presented on the 4th day of March, 1825, and after a protracted debate the Senate refused to admit him to a seat. No record of this debate has been preserved, and the committee have not the advantage of the reasoning by which the Senate was guided in its action. Enough, however, remains to show that the Senate decided that a vacancy authorizing an appointment by the executive had not ' ' happened ' ' within the meaning of the Constitution. It was held, and, in the opinion of this com- mittee, correctly, that the Constitution conferred upon the legislature, and upon it alone, the power to appoint a Senator for the beginning of a new term; and it seems to the com- mittee that this decision is clearly in accord with the spirit and meaning of the article of the Constitution already quoted. This section confers upon the legislature the right, and imposes upon it the duty, of choosing Senators who are to serve for six years. In every one of the States a legislature must be in session at some time preceding the expiration of a Senatorial term. We know as a fact that at the time of the adoption of the Constitution these sessions were mostly annual, and, as now, those not annual were biennial. After the first assignment of Senators to classes, the term of office was fixed, and, under the Constitution, would expire at a time certain. When, therefore, the first clause of the third section, first article of the Constitution directed that Senators should be chosen Ijy the legislatures, it appears most manifestly to have been the purpose of its framers to give exclusive power to the legislature to make the choice, unless, as provided by the last clause, vacancies should "happen" by resignation, or otherwise, during a recess of the legislature, when the executive should make temporary appointments until the next session of the legislature. The power to make temporary appointments was conferred upon the executive because the accidents of death, resignation, expulsion, or acceptance of another office could not be foreseen or provided for by the legislature. In the one class of cases the time when a term would expire was fixed by law and was well known. There could be no doubt or uncertainty in regard to it, and in such case a vacancy could occur only by the willful disregard by the State in framing its organic law, or by the legislature, of constitutional obligations. In such case a vacancy could not "happen," or occur by chance, casualty, or other event that could not be guarded against. The decision in Lanman's case has been for more than fifty years regarded aa a correct exposition of the Constitution. Buring this long lapse of years its authority has not been questioned, and it has guided the action of legislatures and of executives of States. Many cases have occurred when, under like circumstances, for months, and in some instances for one or two years, and even a longer time, States ^ve been represented upon CHARLES H. BELL. 29 the floor of the Senate by a single Senator, and for the reason that the decision in Lan- man's case was regarded as final and conclusive of the question. The following are cases of this character: Cases of unfilled seats or vacancies at beginning of Senatorial terms hy reason of non^election. Maine. — Vacancy from March 4, 1853, till February 23, 1854, when William Pitt Fes- senden took the seat under an election. Connecticut. — Vacancy from March 4, 1851, to May 12, 1852, when Isaac Toucey pre- sented credentials of election by legislature. Pennsylvania. — ^Vacancy from March 4, 1855, to January 18, 1856, when William Big- ler was seated on an election by the legislature. Maryland. — Vacancy from March 4, 1843, to January 2, 1844, when James Alfred Pearce, elected by the legislature, took the seat. North Carolina. — Vacancy from March 4, 1853, to December 6, 1854, when David S. Reid's certificate of election was presented. Indiana. — Vacancy from March 4, 1855, to February 4, 1857, when Graham N. Fitch was admitted on credentials of legislative election, which was contested, and the contest not decided till late in the spring of 1858. Missouri, — Vacancy from March 4, 1855, to January 12, 1857, when James S. Green was . admitted on a legislative election. ^ California. — Vacancy from March 4, 1855, to February 15, 1857, when William M. Gwin presented himself under an election by the legislature. Oregon. — Vacancy from March 3, 1859, until December 5, 1860, when Edward D. Baker took the seat under a legislative election. It is said, however, that the Senate departed from the rule in Lanman's case in the case of Mr Sevier, appointed as his own successor by the governor of Arkansas in the year 1837. The report in this case, made by a committee of the Senate, shows that the State of Arkansas was admitted into the Union in the year 1836, and in September of that year elected two Senators, Mr. Sevier and Mr. Fulton. Under the constitutional rule Mr. Pulton was allotted to the second class of Senators and Mr. Sevier to the third, and his term of service expired on the 3d day of March, 1837, during a recess of the legislature. A committee of the Senate, to whom the credentials of Mr. Sevier were referred, after quoting the decision in Lanman's case, say: "The decision seems to have been generally acquiesced in, nor is it intended by the committee to call its correctness in question. The principle asserted in that case is that the legislature of a State, by making an election themselves, shall provide for all vacan- cies that must occur at stated or known periods, and that the expiration of a regular term of service is not such a contingency as is embraced in the second section of the first arti- cle of the Constitution." And the committee concludes by saying: "The case under consideration is whoUy different in principle. The time when Mr. Sevier was to go out of office under his election * * * was decided by lot under the provisions of the Constitution on that subject, * * * and therefore they recommend that Mr. Sevier be admitted." The case in its facts was identical with that of Mr. Cocke, of Tennessee, settled in 1797, but in all material points differs from the one now under consideration. The committee, from every view of the case, are forced to the conclusion that the va- cancy occasioned by the expiration of the term of Senator Wadleigh cannot be filled by executive appointment, and therefore report the following resolution, and recommfend its passage: Besoloed, That the Hon. Charles H. Bell is not entitled to a seat as a Senator by virtue of the appointment by the executive of New Hampshire. E. SAULSBUEY. BENJ. H. HILL. J. E. BAILEY. F. KERNAN. GEO. S. HOUSTON. Z. B. VANCE. TIBWS OF THE MINOEITY. 1. The undersigned members of the Committee on Privileges and Elections, to whom wer? referred the credfenti^l? of Hon. Charles H. Bell, claiming to be admitted as jv Sen- 30 SENATE ELECTION CASES. ator from the State of New Hampshire, dissent from the conclusions of a majority of the committee. The Constitution, Article I, section 3, provides as follows: 1 A. "The Senate of the United States shall be composed of two Senators from each State, chosen by the legislature thereof, for six years; and each Senator shall have one vote. "Immediately after they shall be assembled in consequence of the first election, they shall be divided as equally as may be into three classes. The seats of the Senators of the first class shall be vacated at the expiration of the second year, of the second class at the expiration of the fourth year, and of the third class at the expiration of the sixth year, so that one-third may be chosen every second year; and if vacancies happen by resignation or otherwise during the recess of the legislature of any State the executive thereof may make temporary appointments until the next meeting of the legislature, which shall then fill such vacancies." The term of office of the Hon. Bainbridge Wadleigh, a Senator from the State of New Hampshire, expired on the 3d day of March, 1879. By the statute of the United States, approved July 25, 1866, re-enacted Revised Stat- utes, 814, it is provided: • "The legislature of 'each State, which is chosen next preceding the expiration of the time for which any Senator was elected to represent such State in Congress, shall, on the second Tuesday after the meeting and organization thereof, proceed to elect a Senator in Congress." . Under the new constitution of New Hampshire a legislature was chosen in November, 1878, for a term to begin in June, 1879. That legislature cannot elect a Senator until June, 1879, because by the constitution of the State its legislative powers will not vest until then. Its predecessor could not elect a Senator at its last session, and cannot now, if called together in special session, because it was not the legislature last chosen before the expiration of Mr. Wadleigh's term. The governor of New Hampshire, on the 13th of March, 1879, made temporary ap- pointment of the Hon. Charles H. Bell until the next meeting of the legislature. Mr. Bell now presents himself to claim the seat. The only question is, has a vacancy hap- pened by "resignation or otherwise," so that the executive was authorized to make this appointment? We are aided in determining this question by considering the leading purpose of the constitutional provision, the natural meaning of the words, and the uniform construc- tion given to similar language used elsewhere in the Constitution and the previous judgments of the Senate in like cases. The purpose of the Constitution is to have the Senate always full. This is the inter- est not merely of the State whose right to elect is in question, but of the whole country, for whom the Senator is to legislate, whose servant he is, and to whom his service is due. To this end the Constitution provides that "the Senate shall be composed of two S,enators from each State"," and authorizes Congress to makd regulations as to the time and manner of electing them. Congress has exercised this authority in the statutes cited, so that no failure of duty of either branch of the legislatiire may interrupt the State's representation in the Senate. To meet the case of a vacancy happening in the recess of the State legislature the Constitution clothes the executive with the power of temporary appointment. The purpose to keep the representation of the State always full requires the construction which authorizes such appointment when the vacancy happens at the beginning of the term as much as if it happen at any other time. The authority given to the governor is to appoint ' ' until the next meeting of the legislature, ' ' which literally construed would ^require the Senator so appointed to vacate his seat on the day the legislature meet. Yet the Senate, in furtherance of the controlling pur- pose of the Constitution that the place shall be always full, has uniformly held that the Senator so appointed retains his seat until the legislature choose his successor or adjourn without making a choice. The authority to appoint is vested in the executive " if a vacancy happen. ' ' There is no distinction indicated between vacancies which happen when the term begins and vacancies which happen later. There can be no reason suggested for such a distinction. It is said that the term "vacancy" is hot properly applied to offices whose term has expired by limitation at a fixed time but only to terms which have once been filled. But the Constitution expressly declares "the seats of the Senators shall be vacated at the expiration of the sixth year, ' ' &c. Did the Constitution mean to declare that to vacate a seat does not create a vacancy in it? But it is said a vacancy which occurs at a certain time fixed by law is not a vacancy viiich ' ' happens ' ' ; that the Constitution meant only tq vest the appointing power in the CHARLES H. BELL. 31 executive in case of tlie vacancy ocouning by reason of events which cannot be certainly foreseen; and this is the strong point of those -who differ with us. On the contrary, we affirm that nothing is better settled in the construction of the Constitution and ef legis- lation under it than that the words "vacancies happening" include the case of of&ces which have a fixed term which has expired, and which are vacant because no new ap- pointment has been made. Article 2, section 2, of the Constitution, in its provision for the appointment of officers, declares: "The President shall have power to fill up all vacancies that may happen during the recess of the Senate by granting commissions which shall expire at the end of their next session." Under this provision the President exercises the undisputed power of filling offices which have a term fixed by law which expires in the recess of Congress. Most impor- tant rights of the people and of private citizens depend on the legality of such appoint- ments which the construction contended for by the majority of the committee must overturn. In Eevised Statutes, section 1769, "the President is authorized to flUall vacancies which may happen during the recess of the Senate by reason of death, or res- ignation, or expiration of term of office." It is not the ending of the term, but the absence from the office of any person author- ized to fill it, to which the word "happen," which expresses contingency, is applied. It is certain that the term will end. It is still uncertain whether the office will be va- cant, because that depends on the contingent event of the legislature's having filled it. It is in accordance with the custom of our language to apply the word "happen/' to the simultaneous occurrence of two events, both of which are certain to take place. "If the fourth of July happen on Sunday, the next day shall be a legal holiday. " " If the last day of grace happen to be a holiday, the note shall be payable on the day preced- ing." A fortiori the word may be appropriately used to express the occurrence at the same time of two events, one of which is contingent. If there happen to be no Senator in the office, the authority of the executive exists. The question has frequently arisen for judgment in the Senate. By a line of decis- ions unbroken, with one possible exception, it has been held that the governor of a State is authorized to fill a vacancy existing at the beginning of a Senatorial term. April 27, 1797, William Cocke was appointed a Senator from the State of Tennessee by the governor, his term having expired on the third of the preceding month. On the loth of May, 1797, .he presented his credentials, and was admitted to take the oath of office without objection or debate. March 3, 1801, the seat of Uriah Tracy, of Connecticut, became vacant by the expira- tion of his term of offiqe. On the 20th of February, 1801, the governor of Connecticut reappointed him a Senator. Objection being raised to his credentials, he was admitted to the oath by a vote of yeas 13, nays 10. William Hindman, of Maryland, was afterward, on the next day, admitted to the oath on like credentials, without objection. John Condit, of New Jersey, November 14, 1803, appointed a Senator from New Jersey to fill the vacancy at the beginning of the term, was admitted to take the oath. Mr. Condit's credentials had been presented October 17, previous. March 4, 1809, Samuel Smith, of Maryland, appointed on that day by the governor of his State to fill the vacancy caused by the expiration of his own term, was admitted to his seat and sworn. March 4, 1809, Joseph Anderson, of Tennessee, took his seat by virtue of an appoint- ment from the governoj? of that State. May 24, 1813, Charles Cutts, of New Hampshire, appointed by the executive to fill the vacancy during the recess of the legislature, was, without question, admitted to take the oath. This vacancy was at the beginning of the terra. March 4, 1817, John Williams, of Tennessee, appointed a Senator by the executive of the State, to hold said appointment until the meeting of the next session of the legisla- ture, was ad'iiiitted. His credentials were filed on the 10th of the preceding February. March 4, 1825, James Lanman, of Connecticut, presented his credentials of his ap- pointment by the governor of that State, "to take effect immediately after the 3d of March, 1825, and to hold the seat until the next meeting of the legislature. " Mr. Lan- man was refused the seat by a vote of 23 to 13. The case was referred to a select com- mittee, who report the facts, but state neither reason nor conclusion. The committee say they have looked into the journals of the Senate, and that the cases of Cocke, Tracy, Anderson, and Williams are the only analogous cases they could find. There is a brief sketch of the debate inNiles' Eegister, vol. 28, page 32, but no statement of the reason on which any Senator proceeded. There is no historical evidence from which we can deter- mine whether the Senate rejected Mr. Lanman on the ground that the governor could not fill a vacancy happening at the beginning of the term, or on the ground that the governor could not lawfully make the appointment in anticipation, befcre the vacancy 32 SENATE ELECTION CASES. occurred, and before he could possibly know whether the legislature might be called together before that time. All the precedents which the committee cite, except that of Mr. Cocke, were cases where the appointment was made not when the vacancy happened in the recess of the legislature, but only when the governor thought it might happen. In the case of Cocke the date of the appointment is not given in the journals, although in fact it was after the vacancy. The committee do not cite the case of Hindman, Smith, or Condit, nor the then recent case of Cutts, in deciding which some Senators then in office took part, where the appointments were made after the vacancy existed. There is, therefore, nothing to show whether the Senate meant to overrule all the precedents, some of which were not brought to its attention, or only so many of them as recognized the right of the executive to appoint when a vacancy had not happened. Judge Story (Constitution, § 727, note 2) says: "In the case of Mr. Lanman, a Senator from Connecticut, a question occurred wnc.tii«. the State executive could make an appointment in the recess of the State legislature in anticipation of the expiration of the term of office of an existing Senator. It was decided by the Senate that he could not make such an appointment. The facts were that Mr. Lanman'sterm of service as Senator expired on the 3d of March, 1825. The President had convoked the Senate to meet on the 4th of March. The governor of Connecticut, in the recess of the legislature (whose session would be in May), on the 9th of the preceding February appointed Mr. Lanman as Senator, to sit in the Senate after the 3d of March. The Senate, by a vote of 23 to 18, decided that the appointment could not be constitu- tionally made until after the vacancy had actually occurred." (See Gordon's Digest of the Laws of the United States, 1827; appendix, note 1, B.) In regard to the same case, the National Intelligencer of March 8, 1825, says in an editorial note: "An important constitutional question was yesterday decided in the Senate by the refusal to admit Mr. Lanman to a seat in the Senate under a commission from the gov- ernor granted before the expiration of Mr. Lanman's late term of service. This is the first time the question has been adjudicated under such circumstances as to form a prece- dent; and we presume it may now be considered as a settled construction of the con- stitutional provision that a vacancy must have literally 'happened' or come to pass before an appointment can be made to fill it." The State of Arkansas was admitted to the Union in 1836. In October, 1836, the leg- islature of that State elected Ambrose H. Sevier and William S. F-ulton Senators. On the allotment of the Arkansas Senators to their respective classes, as required by the third section of the first article of the Constitution, Mr. Sevier was placed in the class of Senators whose term of service expired on the Sd of March, 1837. The legislature of Arkansas had no opportunity to fill ^the vacancy, and were not in session after the result of the allotment was known in that State. January 17, 1837, the governor of Arkansas appointed Mr. Sevier to fill the vacancy which would take place on the 3d of March. Wiien Mr. Sevier's credentials were presented at the winter session, Mr. Webster sug- gested a doubt of the validity of the appointment, in which Mr. Sevier himself con- curred. At the March session the credentials were referred to the Committee on the Judiciary. Mr. Grundy, from that committee, reported in favor of Mr. Sevier's admis- sion, and he was admitted. Mr. Grundy's report states that it is not intended by the committee to call in question the correctness of the decision in the Lanman case; that that case proceeded on the ground "that the legislature should provide for all vacancies which must occur at stated and known periods, and that the expiration of a regular term of service is not such a contin- gency as is embraced in the second section of the first article of the Constitution." The report further says: "The case now under consideration is wholly different in principle. The time when Mr. Sevier was to go out of office was decided by lot. ' ' From this review of the j udgments of the Senate, it appears that in every case in which a Senator has been appointed by the executive after the happening of a \'acancy by the expiration of a term without an election of a successor by the legislature, the person so appointed has been admitted to his seat. There is no indication that the Senate ever denied or doubted the correctness of this construction of the Constitution, except the un- supported statement of Mr. Grundy of the ground of a decision made twelve years before — a statement which nothing in the journal of the debates confirms, and which is opposed to the understanding of Judge Story and the contemporaneous article in the Intelligencer. The second section of the first article of the Constitution provides: ' ' When vacancies happen in the representation from any State, the executive authority thereof shall issue writs of election to fill such vacancies. ' ' In 1837; the law of Mississippi fixed the time for the election of Eepresentatives in November. The President having called a special ses- sion of Congress to meet in September, the goverflor of Mississippi, on the 13th of June issued writs for an election in July for two Eepresentatives to Congress to fill said vacancy' untU miperseded by the members to be elected at the next regale: electioaiu November^ CHARLES H. BELL. 33 At this July election Messrs. Gohlson and Claiborne were elected and claimed the seats. Their claim was referred to a committee, of which Andrew Buchanan was chairman, who reported in favor of their right to seats for the' full term. They say in their report: "The Constitution authorizes the executive power of the States respectively to Order the filling of all vacancies which have actually happened, in the mode therein pointed out, no matter how the vacancy may have happened, whether by death, resignation, or expiration of the term of members previous to the election of their successors. ' ' ■ In the debate, John Quincy Adams said he believed, in relation to offices, that every one happens to be vacant which is not full; and that, he believed, was the meaning and sense of the Constitution, whether the vacancy occurred from casualty, the regular course of events, expiration of term, or other cause. The claimants were admitted to their seats. In November following, Messrs. Prentiss and Wood were elected for the same term. At the next Deceniber session, the resolu- tion declaring Gholson and Claiborne elected was rescinded, but a resolution was also adopted, by the casting vote of Speaker James K, Polk, that Prentiss and Wood were not members. So that no inference can properly be drawn from that case; and it is of no value, except so far as weight may be attached to the opiniolis of John Quincy Adams and James K. Polk, both favoring the construction of the Constitution for which we. con- tend. Appended to the report in the Mississippi case are opinions of two of the most distin- guished Attorneys-General of the United States, Roger B. Taney and William Wirt, in which they discuss the. meaning of the phrase "vacancies that may happen during the recess " with reference to the power of the President to fill an office which is vacant in the recess, because the Senate adjourned without acting on a nomination, the original vacancy having happened during the session. Both these"eminent jurists agree that the term ' ' happen ' ' is equivalent to ' ' happen to exist, " " if it come to pass that there be a vacancy." Mr. Taney says: "The Constitution was formed for practical purposes, and a construction that defeats the very object of the grant of power cannot be a true one. It was the intention of the Constitution that the offices created by law should always be full." We submit, therefore, that the natural and ordinary meaning of the language employed, the purpose which the framers of the Constitution meant to accomplish, the unbroken - cun'ent of decisions in like cases, and the uniform construction given to the same lan- guage when used elsewhere in the Constitution and in legislation in like cases, concur in supporting the interpretation which establishes Mr. Bell's claim. The office of Senator is a continuous office. When the Senator is duly elected by the legislature beforehand no vacancy exists within the meaning of the Constitution. His taking the oath of office relates back to the beginning of the term and preserves the continuousness of the suc- cession. He is when on his way to take the oath deemed to be a Senator and privileged' from arrest. A vacancy happens, and only happens, when the legislature has failed to make due election, or the person chosen declines the appiiutment, or when the office once filled is vacated by death, resignation, or otherwise. But if we adopt the narrowest possible construction imputed by Mr. Grundy in the Sevier report, the decision in the case of Lanman, the doctrine of the Sevier decision itself, is enough for the purpose of this case. If the failure of the Arkansas legislature to be in session after the expiration of Mr. Sevier's term was decided by lot made the va- cancy contingent in the narrowest sense of that term, so that the governor could appoint, certainly the fact that there is no legislature in the State able to act constitutes such a contingency. Whether it so happens that the person once chosen is unable to remain in office, or it so happens that the legislature cannot meet and choose, the contingency of a vacancy'in the office, has occurred. The six months at the end of the term are no more important than six months at its beginning. The Constitution makes equally careful provision for either. GEO. F. HOAR. ANTJUS CAMERON. JNO. J. INGALLS. Thursday, April 3, 1879. On motion by Mr. Saulsbury, the Senate proceeded to consider the resolution reported yesterday from the Committee on Privileges and Elections, declaring that Charles H. Bell is not entitled to a seat as a Senator by virtue of the appointment of the governor of New Hampshire. On motion by Mr. Hoar to amend the resolution by striking out, after the word "is," the word "not," Pending debate, Ordered, That the further consideration of the resolution be postponed to Monday next. S E C 3 34 SENATE ELECTION CASES. [The debate ia found on pages 184-189 of the Congressional Record referred to in the head-note.] Monday, April 7, 1879. The Senate resumed, "y-^'™ V'°"f J™° on the same subject, had not elected a successor to Mr. Blair; that the question was whether a vacancv arising under such circumstances was a vacancy " happening by r/signation or otnerwKe, during the recess of the legislature of any State." (Article I, section 3, of '"e Constitution.) ex- tracts from remarks given below will show the grounds upon which different Senators proceeaeo. The history of the case here given consists of a Iranseriptof the proceedings of the henate reia^ ingto it from the Senate Journal, 48th Cong., 2d sess. (special session, March and April, latB), and extracts from remarks of Senators. . ^t. ^ • „i The debates are found in the Seuate proceedings* of March 9 and 10, 188o, m the Congressional Record, vol. xvii, part 1. Monday, March 9, 1885. Mr. Pike presented the credentials of Henry W. Blair, appointed a Senator by the governor of New Hampshire to fill the vacancy in the representation from that State hap- pening March 4, 1885, during the recess of the legislature. The credentials were read ; and, On motion by Mr. Vest that they be referred to the Committee on Privileges and Elec- ■tions, it was determined in the negative. Mr. Hoar thereupon submitted the following resolution: ■'Resolved. That Henry W. Blair, appointed a Senator from the State of New Hamp- shire, be now admitted to take the oath of ofiice, ' ' When, On motion by Mr. Harris, and by unanimous consent. Ordered, That the consideration of the resolution be postponed to to-morrow. Tuesday, March 10, 1885. The Vice-President laid before the Senate the resolution yesterday submitted by Mr. Hoar, that Henry W. Blair be now admitted to take the oath of oface as a Senator from the State of New Hampshire ; and On the question to agree to the resolution, After debate, it was determined in the affirmative — yeas 36, nays 20. On motion by Mr. Vest, the yeas and nays being desired by one-fifth of the Senators present. Those who voted in the afllirmative are Messrs. Aldrich, Allison, Cameron, Chace, Con- ger, CuUoni, Dawes, Edmunds, Evarts, Frye, Hale, Harrison, Hoar, Ingalls, Jones of Florida, Jones of Nevada, McMUlau, Mahone, Manderson, Miller of California, Miller of New York, Mitchell, Morrill, Palmer, Pike, Piatt, Riddleberger, Sabin, Sawyer, Sewell, Sherman, Spooner, Stanford, Teller, Van Wyck, and Wilson. - Those who voted in the negative are Messrs. Beck, Blackburn, Camden, Cockrell, Coke, Eustis, Gibson, Gorman, Jackson, Jones of Arkansas, Kenna, McPherson, Maxey, Mor- gan, Payne, Pugh, Eansom, Saulsbury, Vance, and Vest. So the resolution was agreed to. Mr. Henry W. Blair then appeared, and the oath prescribed by law having been ad- ministered to him by the Vice-President, he took his seat in the Senate. [Extract from remarks of Mr. Vest, of Missouri, in opposition to the resolution submitted by Mr. Hoar that Mr. Blair be admitted to take the oath of oilice. Found in the proceedings of March 10, 1885, in the Congressional Record, vol. xvii, part 1.] " Mr. President, yesterday I asked that the resolution should go over until to-day in order that it might be examined by the new Senators just sworn into this body, and in * Bcferences to the pages of the Congressional Record cauuot be given, as the Becords for the ses- 8iou are not at tbia date bounds SENEY \V. BLAIE. 37 order that those of us who were members at the time the Bell case was under discussion and was determined should have an opportunity to refresh our recollection in regard to the points then made and discussed. It is not my purpose to enter into a lengthy t6- sum6 of that argument then so exhaustively made. I simply wish to say now that I reaffirm what was my conclusion then as a lawyer in regard to this subject. "I voted on the Bell case that Mr. Bell was not entitled to a seat in this body; that the governor of a State had no right to fill an entire term by original appointment; that the meaning of the Constitution, which declares ' if vacancies happen by resignation or otherwise, during the recess of the legislature of any State' the executive authority of a State may make a temporary appointment, is that when a vacancy shall occur, not by operation of law, but by some event which applies to the individual asking for the office " or applying for admission into this body, by the resignation of a person, by death oper- ating upon him, and that the word 'otherwise' in that connection means by similar casualty— when a vacancy shall happen, when it shall occur, not by operation of statute or of any constitution, but when it occurs by resignation, death, or otherwise. ' ' The terms of the Constitution as originally made — and I shall be very brief in the dis- ^ cussion of the subj ect, for I only propose to give my own reasons for casting my vote — the terms of the Constitution are: " ' If vacancies happen by resignation or otherwise, during the recess of the legislature of any State, the executive thereof may make temporary appointments until the next meeting of the legislature, which shall then fill such vacancy.' ' ' There are three clauses in the Federal Constitution in which the word ' happen ' is used. First, in Article II, section 2, the Constitution says: " 'The President shall have power to fill up all vacancies that may happen during the ' recess of the Senate, by granting commissions which shall expire at the end of their next session. ' "Article I, section 2, provides: " 'When vacancies happen in the representation from any State, the executive author- ity thereof shall issue writs of election to fill such vacancies. ' "Article I, section's, which is the clause now under discussion, provides: " 'And if vacancies happen by resignation or otherwise, during the recess of the legis- lature of any State, the executive thereof may make temporary appointments until the next meeting of the legislature, which shall then fill such vacancies. ' "In all three of these clauses the word ' happen' is used, but I call the attention of the Senate to the fact that in the first two clauses in regard to vacancies in the House of Representatives and vacancies during a recess of the Senate as to executive officers, the word 'happen' is without limitation, ' where vacancies shall happen,' and there is the termination of the power of the President in regard to executive appointments; but in regard to Senators the Federal Convention put a limitation upon the word ' happen. ' They did not stop with declaring where vacancies may happen during a recess of a legis- lature that then the governor may appoint, but where a vacancy shall happen by resig- nation or otherwise. "If the Senators now present are correct who claim the power of a governor to exist to appoint in these cases, we are forced to the conclusion that the words ' by resignation or otherwise' are void and meaningless as used by the framers of the Constitution, or else that the terms are a limitation upon the word 'happen. ' They are not found in the other two clauses of the Constitution. What makes this argument more significant and con- clusive to my mind is that the original draught of the Constitution, which I have belbre , me, and the debates show that the clause as originally reported to the convention of 1787 was absolute and unlimited, when a vacancy should occur, and Mr. Madison moved to put in these terms of limitation, that where the vacancy should occur by resignation or other'Mse, or equivalent terms, then the governor o'f the State might appoint. "I know it has been said that contemporaneous construction at the time militates against "this view. In the debate which occurred in the Bell case an editorial was read fromtheNational Intelligencer of March 8, 1825, and it was said that this had been adopted by Judge Story and by Mr. Gordon, who was compiling a book in regard to the proceed- ings of Congress at that time. The most authoritative statement in regard to the mean- ing of Congress and the debates of Congress at that time is found in Niles's Register, the authority of which I take it will not be questioned on this floor. In Niles's Register I find the following: " 'The following members' — "Says the Register of March 12, 1825— " 'The following members, also re-elected for six years from this day, took the oath of office, namely: Mr. Lloyd, of Maryland; Mr. Macon, of North Carolina; Mr. Gnillard, of South Carolina; Mr. J. S. Johnston, of Louisiana; and Mr. Barton, of Missouri. " 'Some conversation took place on the case of Mr. Lanman, reappointed by the gov- ernor in the recess of the legislature, the question being, whether a failure by the legis- 38 SENATE ELECTION CASES. lature to inake a choice of a Senator constitutes the contingency in which a governor may appoint a Senator, the language of the Constitution being, ■ ' if vacancies happen, by resig- nation or otherwise," &c.' -u n-v. "It is said, and conspicuously hy the Senator ftom Massachusetts [Mr. Hoar], that the quotation in the National Intelligencer and in the book by Gordon showed" that the Lan- man case decided in 1825 did not touch this question, did not determine it, and that the Lanman case, a case from Connecticut, went off on the power of the governor to naake an appointment before the vacancy existed. Niles's Eegister asserts emphatically that the very point now at issue before the Senate was decided in 1825. I know that other cases were decided antecedent to the Lanman case, but they were decided, I afiirm, without discussion, without debate. ' ' In 1825 this precise case was brought before the Senate of the United States, and it was decided then that the governor could not appoint as to a full term. In 1835 for the hrst time this question was elaborately and exhaustively debated by the ablest lawyers then in the United States, and it was decided that the governor did not have the right to make such an appointment; and I say to-day, as was said in the Bell discussion, that from 182o to the decision of the Bell case in 1879 not one solitary utterance was ever heard upon this floor or elsewhere which questioned the accuracy of the position I take here now. ' ' I know it is said that the Sevier case from Arkansas, decided in 1837, antagonizes this view: but the report of Mr. Felix Grundy on the Sevier case asserted that that decision was not in antagonism to the Lanman decision, but that it was made upon the express ground that Sevier had drawn his seat by lot, and that therefore the term "happen" applied to that case; but Mr. Grundy expressly says, and I have his report before me as chairman of the Judiciary Committee, that the Lanman case was the precedei^; that it decided the correct doctrine, and it was held so invariably until the decision of the Sen- ate in 1879. "Mr. Wadleigh, from New Hampshire, in discussing this very question admitted that • the Lanman case was decisive of the whole matter. Says Mr. Wadleigh: " ' The Senator from Ohio '— " Referring to Mr. Thurman— ' ' ' The Senator from Ohio would have us believe that there is some doubt as to whether this legislature or the next is entitled to elect. That-is a matter which greatly concerns the people of New Hampshire. It is desira.ble that that question should be settled at once, so that Ihey may not put themselves in a position Jrom which they cannot be extricated without great embarrassment. Accordingly a bill was presented to this body by the Sen- ator from Wisconsin [Mr. Cameron] and referred to the Committee on Privileges and Elec- tions, which reported unanimously that this legislature cannot elect the Senator, that the next legislature must elect. That shows to us clcirly that unless this bill passes there must be a yacancy in this Senate from the State of New Hampshire for three months in the next Congress.' "In other words, that the governor could not fill the vacancy; and there is upon the other side of this Chamber a succession of weighty authority in the same direction. Mr. Thurman asked: " ' Is there any probability of Congress being in session during those three months?" " ' Mr. Wadleigh. I do not know about that. " ' Mr. Whyte. I ask the Senator from New Hampshire why the governor of New Hampshire cannot appoint for, the vacancy until the legislature meets in June? " 'Mr. Blaine. He cannot do that if the previous term has fully expired.' ' ' Which is the very case here. " ' Mr. WhyiTE. Suppose this legislature has power to elect and does not elect, is not that a vacancy? " ' Mr. Blaine. Then the power of the governor does not come in. " ' Mr. Whyte. It does, apparently. "'Mr. Blaine. Not at all. " ' Mr. Davstes. Everyprecedent of the Senate is against that. " ' Mr. Blaine. The Senator from Maryland is too good a lawyer to make that asser- tion. " ' Mr. Wadleigh. Having examined the precedents, I am inclined to think the gov- ernor cannot appoint. ' " 'Mr. Blaine. Of course the governor cannot appoint. Nothing is better settled than that. The honorable Senator from Ohio [Mr. Thurman] will give his assent to that, if the term has fully expired. ' , "Never until the Bell decision by the Senate was any voice ever raised from 1825 to 1879 which gave to the governor of a State the right to fill a full term. " I remember very well in the Bell discussion when Senator Conkling, of New York, put a question to Senator Hill, of Georgia, in regard to the power of the governor to fili_ the term. Senator Conkling said: ' If that power exists, the governor, by collusion HENRY W. BLAIK. 39 ■with a majority of tho legislature, conlcl from time to time put off an election and fill the vacancy out of his own creatures and to suit "himself.' Senator Hill replied to him that that was the identical argument which he proposed to mal;e, and that that was fhe meaning of the constitutional provision, which did not give this power to the executive of a State. " But if I had any doubt about the meaning of the Lanman decision, I find it in Mr. Ben- ton's Thirty Years' View, and he was the most accurate mail who ever wrote in this country in regard to the proceedings of this body or the other. Mr. Benton says: " 'Mr. Lanman has served ii regular term as Senator from Connecticut. His term of service expired on the 3d of March of this year, and the general assembly of the State having failed to make an election of Senator in his place, he received a temporary appoint- ment from the governor. On presenting himself to tako theoath of office, onthp4thday of March, being the first day of the special Senatorial session convoked by the retiring President (Mr. Monroe) according to usage for the inauguration of his successor, his ap- pointment was lobjected to as not having been, made in a case in which a governor of a State could fill a vacancy by making a temporary appointment. Mr. Tazewell was the principal speaker against the validity of the appointment, arguing against it both on the words of the Constitution and the reason lor tho provision. The words of tho Constitu- tion are: " If vacancies happen (in the Senate) by resignation cr otherwise, 'during the recess of the legislature of any State, the executive tbereof may make temporary appoint- ments, until the next meeting of the legislature." " Happen " was held by Mr. Taze- well to be the governing word in this provision, and it always implied a contingency, and an unexpected one. It could not apply to a foreseen event, bound to occur at a fixed period. Here the vacancy was foreseen; there was no contingency in it. It was regu- lar and certain. It was the right of the legislature to fill it, and if they failed, no matter from what cause, there was no riglit in the governor to supply their omission. The Sen- ators voting in favor of tho motion were, &c.' "Showing from the highest authority that in the Lanman case the identical point at issue here to-day was raised and decided and remained an unbroken precedent from 1825 to 1879. "But, Mr. President, more than that, and I am speaking as rapidly as possible, for this question has been fully exhausted, and I think the decusion in the Bell case will be affirmed here again to-day; and I merely make this statement, as I said before, in order to afBrm my own established opinion upon this question and the reasons which I have for it, it has always been held here, it has never bern lor one instant contradicted, that if the legislature of a Stato had beeu in session which could have filled the vacancy, and had the power to fill the vacancy, and refused to do it under the Constitution, then ,the governor could not possibly have the power to appoint. Now, the legislature of New Hampshire has Jjeen in session: tho legislature of New Hampshire has had tho power to fill this vacancy. The legislature of New Hampshire applied to the supreme court of that State, under the constitution of New Hampshire, to ascertain whether the power existed in the legislative assembly. Tho supreme court declared to them that tho power dicj exist. They deliberately refused to exercise it; they adjourned; and now it is claimed, in view of these facts, that the chief executive of that State has the right, as I hold, in direct contravention of tho terms and spirit of the Constitution, to fill a full term, and that that power exists not ex vi termini upon those terms, but according to the meanipg of the Constitution itself. " This is all I desire to say, sir. I shall vote against this gentleman's admission, be- lieving the precedent in the Lanman ease to be the correct one; and I shall do so the more cheerfully because t am not ashamed to he found as a lawyer in company with the memory of Carpenter, of Wisconsin, with the opinion of Judge Davis, of Illinois, who voted with me, and with the present Attorney-Ueneral of the United States, who made a learned and exhaustive argument upon the same side. I am not ashamed to assert the same opinion in that company and to give feebly the reasons which were then uttered." [Extracts from remarks of Mr. Hoar, of MassBclmsetts, in support of the resolution submitted by him that Mr. Blair l)c admitted, to take the oalli of cfflce. Found in the proceedings of March 10, 1885, in the Congressional Eecord, vol. xvii, part 1.] "Mr. President, I do not think it will be profitable to enter upon the very wide field of discussion which the question involved in this case opens. I think the Senate ^vill prefer to rest its decision to-day upon the authority of one of the most authoritative precedents which have occurred in its history. "If a legislative body exercising quasi-judicial functions like that which is exercised when the Senate determ ines the right pf a claimant to a seat here can ever be bound by a precedent, the Senate has bound itselfby the precedent established in the case of Mr. Dell. It was established on full discussion by great lawyers and great Senators. It was estab- lished by a decisive majojity, in which the division was totally non-partisap. The great 40 SENATE ELECTION CASES. debaters and Jawyers to whom my honorable friend from Missouri alluded who differed •with the majority of the Senate on that occasion put forth some of their ablest and best intellectual efforts, rendering it certain that the decision to which the Senate then arrivea was a decision moved in view of every reason which could be suggested bearing upon the question. , , "The people of the State of New Hampshire have governed themselves and must govern themselves and had a right to govern themselves by the decision which the ben- ate then made, and nobody can hope that if by aslight majority that decision should be reversed to-day it would stand reversed. Therefore 'the people of the State ot JNew Hampshire and of all other States where like questions may arise would find themselves in the condition of being compelled to act one way one year and another another, as the changingmajojrity or opinion of the Senate maydecide this case and that as it should come np year after year. "When the question which now arises came up six years ago there were found votmg in favor of the right, and of course of the duty and obligation, of the governor ot a State to appoint a Senator in a case like this gentlemen on both sides of the Chamber. There was the distinguished gentleman who now sits at the left of my friend from M^- souri, the Senator from Indiana [Mr. Voorhees], in that vote, relying, as I have no doubt he did, on the decision of one of the very ablest judges then pronouncing the opinion ot the supreme court of his own State on the intepretation of precisely or substantially similar language. There was found Mr. Bayard, the present Secretary of State; Mr. Gordon, of Georgia; Mr. Groome, of Maryland; Mr. Jones, of Florida, now occupying a seat in the Senate; Mr. McDonald, then representing also the State of Indiana;' Mr. Eandolph, of New Jersey; Mr. Walker, of Arkansas, and Mr. W. Pinkney Why te, of Maryland, who inherited both the name and blood and largely the capacity of one of the greatest consti- tutional lawyers who ever occupied a seat in this body. "Now, I think it is enough to rest this case upon the consideration that if the Senate can adjudge anything ithas adjudged this; but perhaps it may not be improper to take a very few minutes, not in a discussion in detail, but in a mere statement of the history of this constitutional question. ' ' The Constitution of the United States contains this provision, which I submit is the controlling and governing provision, that the several States of the Union shall have an equal and constant power in the Senate of the United States by the representation with which two Senators are clothed. That is what the Constitution means to effect. There is not a full Senate, there is not a State represented and having its equal right and au- thority in the Senate when any single seat is vacant. To that end the Constitution provides as a mechanism for carrying out and accomplishing the purpose that these seats shall always be full, and that every State in this body shall be the equal of every other State. The provision is that the legislature shall choose their Senators: — " 'And if vacancies happen by resignation, or otherwise, during the recess of the legis- lature of any State, the executive thereof may make temporary appointments until the next meeting of the legislature, which shall then fill such vave department acquiesced in from the foundation of the Government, supported by the authority of John Marshall and William Wirt, in regard to the meaning ot precisely similar language in another part,of the Con- stitution; yon have the great judgment of the supreme courtof Indiana, your own State, Mr. President, made by one of its most accomplished jurists, and yott have in addition to that the necessity of preserving the lights of the people of these States; and the one thing opposed is a decision of the Senate, in regard to which no man can know that nay single Senator but Mr. Tazewell or -possibly Mr. Ben ton, "who wrote about it twenty-five years after, put his decision on this ground, and a decision which the Senate would have been compelled to make on another ground if this ground had never existed; and it is that doubtful, questionable, uncertain precedelit upon which the learned Senator and those who think with him rely to bear the weight of this case. " [Eemarka of Mr. Pilte, of New Hampshire, in support of the resolution submitted by Mr. Hoar that Mr. Blair be admitted to take the oatli of office. Found in the prooeedings of March 10, 1885, in the Congressional Record, vol. xvii, part 1.] "Mr. President, ina.smuch as some criticism has been made upon the legislature of New Hampshire, and it has been stated by some gentlemen that they had not acted in the choice of a Senator when they should have acted, I desire to say a few words. "We have a legislature once in two years — a biennial legislature. One was chosen in November, 1882, and another was chosen last November, or November, 1884. Now, the questiouis, which legislature has the right to elect? After our constitution was etaaoged HENEY W. BLAIK. 43 that became n mooted question in our State. We had the national law, to which I will ask the attention of Senators while I read: '"The legislature of each Stci-te which is chosen next preceding the expiration of the time for which any Senator was elected to represent such State in Congress shall, on the second Tuesday after the meeting and organization thereof, proceed to elect a Senator in Congress. ' "By this national law of 1866 the legislature chosen next preceding the expiration of the term was the legislature to elect. Our legislature supposed that the le^slatnre chosen last November in Mr. Blair's case was the one next preceding the end of his term, which was to expire on the 4th of March. A large majority of them acted upon that idea. But precisely the same question arose six years ago at the expiration of Mr. Wad- leigh's term, and at the time when Mr. Bell was appointed, about whom so much talk has been made. "That our legislature might put itself in harmony with the National Government, that it might act in obedience to the national law, application was made to the Congress of the United States, and the recent Senator from Wiscoiisin, Mr. Cameron, introduced a bill by which the national law that I have read might be so modified as to meet the condition of things in our State. The question came up here and was considered by the Committee on Privileges and Elections of this very Senate as to whether the legislature elected in the autumn before the expiration of Mr. \Vadleigh,'s term, or the legislature elected two years before, was the one that should choose the Senator to succeed him; and that bill and that question were considered by the Committee on Privileges and Elections, and Mr. McMillan, a Senator now upon this floor, made the unanimous report of that committee that the legislature elected immediately preceding the expiration of the term, that is, the legislature in Mr. Bell's case, elected the autumn before, and the legislature in the present (Mr. Blair's) case, elected last autumn, was the legislature that had the power, and the only legislature that had the power, to elect. "That report was submitted to this body, and by a unanimous vote, as the record shows, not a single Senator here dissenting upon adopting the report of that committee, the legislature of New Hampshire elected last autumn was the one and the only one that could elect a Senator for this term. Now, it seems to rac that New Hampshire ought not to be very much criticised when she has made this effort to lind what tlie national will, was and to find what the will of the Senate Was, because .«lio has obeyed it and because she has not disobeyed it; more especially after the question as to whether the governor had the right to fill the vacancy at the end of Mr. Wadleigh's term in 1870 was raised and it was decided that he had the power. ' " Mr. President, I hold a seat on this floor. I was elected two years ago last August by the legislature assembling in June, but my term commenced in the March before. Our legislature acted upon the idea that the national law as they understood required, and aa the construction given it unanimously by the Senate required, that the legislature to elect, and the only one which could elect, was the one chosen immediately preceding the end of the term. "In a discussion six years ago in Mr. Bell's case the then Senator from Delaware, Mr. Bayard, so recently here and so distinguished when here, submitted his views to the Senate, and upon the question what legislature has the right to elect in New Hampshire, whether it be the one elected in November preceding the end of the term or the one elected two years and a half before, said: " ' By that law '— "Having quoted immediately before the national law which I have rend — " 'By that law was indicated the legislature and the only legislature which should'fiU vacancies in the Senate of the United States, whether occurring by expiration of the term or from any other cause.' "That was theopinion of the distinguished Senator from Delaware then, as it had been the unanimous opinion of the Senate only four years before. "Allusion has been made to the supremecourt of our State. As I said, there has been considerable division of sentiment in our State, although our legislature has been very largely in favor of giving the construction to the national law that its plain terms seem to intflcate it ought to have, and-which the Senate has given to it, and which the seating of Mr. Bell affirmed. The opinion of the court was asked three years ago. My recent colleague and the gentleman who asks a seat here inti'odnced this question into the Sen- ate by a resolution asking the Senate to reconsider and revise its opinion if it was erro- - neons. There may be found in the Congressional Record, which I have here, the opinion of the court upon this question which he cited. The opinion of our court was read by ^him, and, as I said, it is printed in the Record with other opinions. But notwithstand- ing that, the Senate decided that the national law was too plain to be misunderstood; that it was necessary it should be construed as it had been construed, and refused to render any relief. 44 SENATE ELECTION CASES. ■'Mr. President, 1 have but little more to say. I am not only asserting the fact, but I have the conviction in my own mind that the clause in our National Constitution which says that ' when vacancies happen from resignation or otherwise, ' instead of being words of limitation, ought to be construed to have a very different meaning. This is the only branch of the Government where States have an equality, where one State has just.a.s much power as another. The framers of the Constitution were so much in earnest that that should be the fact that they prohibited any amendment to the Constitution depriving the States of their equality of suffrage in this body. My idea is that when tbe framers of the Constitution said ' when a vacancy liappens by resignation, or otherwise,' they meant when it happens by resignation, or otherwise, fi;om any cause whatever; that they are words of enlargement and explanation, so that there might not be any doubt upon the question that this body should have equal representation, that there should be e({ual suffrage on this floor, and that if a vaca-ncy occurred from any cause the executive should ' have the right to fill it. "Now where do we stand on this question? The Government decided first by the national law, and the Senate has decided upon the McMillan report and upon the ad- mission of Mr. Bell, that the legislature having the right was the one elected immediately preceding the end of the term. Then they have settled in Mr. Bell's case another ques- tion, as to filling the vacancy happening at the end of the term and before the meeting of the legislature,, that the governor had the right to appoint, tender which appointment Mr. Bell was seated; and that is precisely the question before us to-day." [Extracts from remarks of Mr. Edmunds, of Vermont, in support of the resolution submitted by Mr. Hoar that Mr. Blair be admitted to take the oath of office. Found in the proceedings of iWarch 10, 1885, in the Congressional Kecord, vol. xvii, part 1.] "I wish to say one word, Mr. President, about what is called the act of Congress of 1866. The Constitution provides that Congress may regulate the manner by which and the time at which the legislature of a State shall elect a Senator. That is all the author- ity which the Constitution of the United States reposes in Congress over that subject. It salys in another place, but in the same connection, that the legislature of a State shall ordinarily — I am not now on the question of filling vacancies — elect a Senator for a term of six years. It names nothing but the legislature of a State to do that. "I was here when the act of 1866 passed, but I had just come into the Senate and I gS.ve it no attention; I probably voted for it if there was a division, it being reported by a committee. But I have been of the opinion ever since I came to examine the sub- ject, and I am of opinion npw, as I have stated before, I think, in this body, that the act of Congress, in so far as it undertakes to declare what legislature, whether chosen before or after the expiration of a term, or how long before or how long after, shall elect a Senator, goes beyond its constitutional power. I am also of opinion, and I state it delib- eraiely, and I believe I have stated -it before, that when the Congress of the ITnited States undertakes to create a body to elect a Senator which the constitution of the State ha? not created and which is not its legislature it has gone beyond its power. "By the constitution, I think, of every State in the Union, certainly every one "that I know of, the legislative power is vested in two separate and independent bodies, each one of which acts by itself and for itself, and that is the legislature of the State of which the Constitution of the United States speaks when it says that the legislature shall elect a Senator. Therefore I am of opinion that Congress has no more power to turn the two bodies, the senate and houseof representatives of a State, formed under its own constitu- tion as two separate bodies of different numbers and of different constituencies, into one consolidated body voting per capita, than it has to declare that a town meeting in the State of Vermont may elect a Senator and call that a legislature, because it is not by the con- stitution of the State its legislature. But that is apart from this question, and I should not have referred to it only that the act of Congress has been spoken of. "Now let us come to the question. First, I will begin with the original Constitution, to which my friend from Missouri has made reference, as he supposes supporting his view of the meaning of the words "resignation or otherwise." In the original draught of the Constitution submitted to the convention, as it appears on page 205 of volume 5 of Elliott's Debates, in the Madison Papers, the third section was: " ' On the death, removal, or resignation of any Senator, his place to be filled out of the district from which he came. ' "That was the first draught. Theschemehavingbeenentirely changed and abandoned lat«r on, at page 377, Mr. Rutledge, on the 6th of August, 1787, reported from the com- mittee of detail as follows: > " 'Aet. V, Sec. 1.— The Senate of the United States shall be chosen by the legisla- tures of the several States. Each legislature shall choose two members. Vacancies may be snppUed by the executive until the next meeting of the legislature. Each member shall have one vote,' HENRY W. BLAIE, 45 "There, as it stood in that final report in detail, final at that time but changed after ward, you will see that there was no limitation or qualification or restriction except 'vacancies.' They might occur during the sitting of a legislature. Whenever they occurred tho executive was to fill those vacancies until the legislature should elect, not until its next meeting even; but in order to keep the representation of the States full, in order to create a national government which should have all its faculties and all its members in place to perform their duties, this draught reported by the committee of detail provided for a universal filling of a vacancy by the executive, and provided for his filliqg it if a vacancy happened or occurred or existed, whatever it was, even if the legislature were sitting. "Now we come to the amendment of Mr. Madison. That draught was under consid- eration on the 9th of August. Article V, section 1, the one I have read, was taken up, and I shall read the whole proceeding in connection, without any observation, so that it will appear just as it stands in these debates: " 'Mr. Wilson objected to vacancies in the Senate being supplied by the executives of the States. It was iinnecessary, as the legislatures will meet so frequently. It removes the appointment too far from the people, the executives in most of the States being elect eU by the legislatures. As he had al ways thought the appointment of the executive by the legislative department wrong, so it was still more so that the executive should elect into the legislative department. ' ' ' Mr. Eandolph thought it necessary, in order to prevent inconvenient chasms in the Senate. In some States the legislatures meet but once a year. As the Senate will have more power and consist of a smaller number than the other house, vacancies there will be of more consequence. The executives might be safely trusted, he thought, with the appointmentfor so short a time. " ' Mr. Ellswoeth. It is only said that the executive may supply vacancies. When the legislative meeting happens to be near the power will not be exerted. As there will be but two members from a State, vacancies may be of great moment. ' ' ' Mr. Williamson. Senators may resign or not accept. This provision is therefore absolutely necessary. " 'On the question of striking out "vacancies shall be supplied by the executives" — "'Pennsylvania, ay, 1; New Hampshire, Massachusetts, Connecticut, New Jersey, Virginia, North Carolina, South Carolina, Georgia, no, 8; Maryland, divided. " 'Mr. Williamson moved to insert, after " vacancies shall be supplied by the execu- tives," the words, "unless other provision shall be made by the legislature" (of the State). "'Mr. Ellsw^oeth. He was willing to trust the legislature, or the executive,- of a State, but not to give the former a discretion to refer appointments for the Sehate to whom they pleased. " 'On the question on Mr. Williamson's motion, Maryland, North Carolina, South Car- olina, Georgia, ay, 4; New Hampshire, Connecticut, Massachusetts, New Jersey, Penn- sylvania, Virginia, no, 6. " 'Mr. Madison, in order to prevent doubts whether resignations could be made by Senators, or whether, they could refuse to accept, moved to strike out the words after "vacancies" and insert the words "happening by refusals to accept, resignations, or otherwise, may be supplied by the legislature of the State in the representation of which such vacancies shall happen, or by the executive thereof until the next meeting of the legislature. " " ' Mr. GouVEENEUE MOEEIS. This is absolutely necessary; otherwise, as members chosen into the Senate are disqualified from being appointed, to any office by section 9 of this article, it will be in the power of a legislature, by appointing a man a Senator against his consent, to deprive the United States of his services. " ' The motion of Mr. Madison was agreed to, mem eon.' "Thus you wUl see, Mr. President, that the motive for inserting the words ' resigna- tion or otherwise ' (which was afterward trimmed down by leaving out on the report of the committee on style the words 'refusal to accept; ' so as to leave it only ' resignation or otherwise') was distinctly stated by Mr. Madison to be, not that you were to classify a kind of vacancies by resignation, but they were put in expressly for the purpose of recognizing the power of a Senator to refuse to hold on to the office to which he had been appointed. ' ' There never was any question in the debates in the constitutional convention but what it was of the highest importance, the very purpose of the Constitution which pro- vided two Senators from each State, that each State should have all the time, whenever this body met, its full representation, not only for the general benefit of all the people, but sometimes, as was then tho.ught, for its own security, for the preservation of its own rights. " I think, therefore, that this language of Mr, Madison and the action of the couvea- 46 SENATE ELECTION CASES. tion clearly show that the argument of my friend from Missouri is a mistaken one in supposing that the introduction of the word ' resignation ' was for the purpose of giving a class, one of a kind of events that might happen, on the occasion of which the execu- tive might act and not otherwise; because Mr. Madison states the purpose to be exactly the other thing, by putting in one of the words of that kind and then putting in the word ' otherwise, ' lo make it clear that a Senator had a right to resign his place, and then, in order to carry on the whole operations of the Government according to the Con- stitution, providing that the executive, if the legislature were not sitting, should fill it until the legislature met. ' ' There was nothing otherwise in the whole discussion, I repeat, from beginning to end ; and as the draught originally stood it went to the extent, as every Senator will see, of authorizing tho executive to fill a vacancy which happened when the legislature itself was sitting until it did fill it; and the only motive stated for the change, which they all agreed to unanimously, was toput iu some one word that would affirm and recognize the right of a Senator to resign his place, and then to provide that the State should not go without being represented. " Now let us come to the Constitution just for a moment, and I shall have done. The legislature shall elect for the term of six years. 'That is the power given to the legisla- ture. " ' The Senate of the United States shall be composed of two Senators from each State, chosen by the legislature thereof, for six years.' " If you stop there and give it a literal construction, not looking to the purposes of the Constitution— to have a full Senate— there would be no power in any State legislature in this Union to elect if they allowed the time to go by so that when they elected they could not elect under the Constitution for a term of six years. They must elect lor a shorter term; they must in New Hampshire; they must In the hundred cases almost which have happened, when the legislature has lailed to make provision in advance, so that the election was lor six years. Nobody maintains any such proposition, because it defeats the object the Constitution had in view, which was that each State should have two Senators. Now we come to this language about the executive, and see where we are upon the construction of my friend from Missouri: " 'And if vacancies happen by resignation or otherwise, during the recess of the legis- lature of any State, the executive thereof may make temporary appointments until the next meeting of the legislatuie, which shall then fill ' — "What?— "'such vacancies.' " The very ones that are named in the preceding line. Therefore, if the authority of an executive is only to fill a vacancy which occurs by resignation or death or expulsion — the only three ways that I can think of, because a refusal to accept does not create ava- cancy, it leaves the old vacancy just where it was — if that is the meaning, then the only authority which is left to the legislature is to fill the very vacancy that the governor had a right to fill temporarily, and no other. So if the governor of New Hampshire at this moment has not the power to fill this vacancy, by the very same sign and on tBe very same words the legislature of New Hampshire when it meets next June canncA fill it even, for the Constitution says in language as plain as words can make it that the var cancy which the legislature is to fill is ' such ' vacancy, that is, a vacancy which occurs by resignation or otherwise, that the executive of the State may fill if it happens during the recess of the legislature. We cannot stand on that construction; nobody pretends that we can. " By what authority of logic or law is it, then, that we hold that the very same words three lines before limit the power of the executive to a particular class of cases, and that the very same words three lines afterward expand the power of the legislature to every kind of vacancy that may exist? 'That won't do,' to use a phrase of a late eminent Senator of this body. We cannot stand on it. "We hear much of the word 'otherwise.' If Mr. Madison by proposing, or the con- vention by adopting, the words ' resignation or otherwise ' had meant to classify a series of cases like resignation, why would not Mr. Madison, emihent in his knowledge of the English language and clear in its expression, have said ' likewise '? That is the adverb which would suit the class of cases to which my friend from Missouri refers. ' Other things happening in like manner ' is the definition of ' likewise, ' while ' otherwise ' means things happening in any other manner than by resignation. That is the dictionary and the common sense and the universal knowledge of everybody who knows the English language. • "What was the object of the Constitution? It was that the representation of each State should be full, and the Constitution provided two means of keeping it full. First, by the legislature for the full term electing in advance before any vacancy occurred. That woi2d provide fixr all that Then both the executive aod ttie legislature, after a HENEY W. BLAIR. 47 vacancy did happen at a time when the legislature was not in session, could fill it then and there, by providing that instantly the governor in the first instance and the legisla- ture at its next meeting should fill up that vacancy so as to carry .out the great objects of the Constitution. '■ Wherefore, then, ujion any principle of patriotism, or law, or justice, should we en- deavor by construction to narrow down the franchise of a State, if I may call it that, and endeavor to find some class of cases where for some period of time a State shall go unrep- resented?- I a.m unable to see it; and this report of the debates in the convention shows clearly to my mind, and I think even to that of my friend from Missouri and my friend from Delaware, that the word ' resignation ' was not put in with the obj ect that my friends think it was, but for an entirely different object, as was stated by Mr. Madison himself. "This question was fairly debated when the gentlemen on the other side were in a majority in this Chamber. "Without a party division, gentlemen on both sides, voting according to the light they had and not dividing upon ijarty lines, settled this identical question. The Senate in sitting upon such a question sits as judges. The Constitution says so. We are not defining policies; we are not setting up expediencies; we are not carrying on party warfare; we are sitting as the solemn judges sworn to try and determine the election and qualification of a gentleman who presents himself to be a member of this body. We have come to a decision, ju.st as the Supremo Court of the United States sit- ting two hundred feet I'rom us comes to a decision in a great variety of cases where the judges differ — five one wajr four another or whatever it- may be, a difference of opinion. The decision of the court is announced. What would become of that court if the next time a similar question came up the whole thing was opened again and the contest was gone over repeatedly from year to year and time to time in order to see which should get in the ascendency upon all questions? Nothing would be settled, and the court would be destroyed, and justice, too, for that matter. ' ' How is it different here ? When we have come to a decision, even in a case of doubt, having come to it I'airly, not' in a time of party he^t, or by a party vote, when we, after lull deliberation, have come to a decision which carries out confessedly the objects of the Constitution to keep the representation of a State full, should wo not stick to it; or are we, eveiy time a similar question comes up about elections, to reverse our decisions, retry them, hold them of no force, and thus keep this body continually in a turmoil overques- lionsof representations in it that come from the States? liowever doubtful it might have been — it did not seem to mc so, to be sure, but however doubtful it might appear to the minds of gentlemen who voted in the minority — it appears to me that, once de- cided and decided in favor of representation, it would bo better to follow that as an estab- lished precedent which carries out the objects the Constitution has in view." 48 SENATE ELECTION CASES. A LIST SHOWING ALL TEE APPOINTMENTS OF SENATORS BY 60VEBN- 0E8 OF STATES, FROM THE FIRST TO THE FORTY-NINTH CONGRESS, ARRANGED IN THE ORDER OF TIME THAT THE CREDENTIALS WERE READ IN THE SENATE. 1. John Walker, Virginia.— Appointed March 31, 1790; produced credentials and took seat April 26, 1790; death of William Grayson, and refusal of George Mason to act after election. James Monroe elected November 9, 1790, to fill unexpired term ending March 3, 1791; credentials dated November 10, 1790; produced credentials and took seat De- cember 6, 1790. 2. Kensey Johns, Delaware.— Appointed March 19, 1794; produced credentials March 24, 1794; resignation of George Read; Mr. Johns not admitted. Henry Latimei elected February 7, 1795, to fill unexpired term ending .March 3, 1797; produced credentials and took seat February 28, 1795. 3. George Walton, Georgia. — Appointed November 16, 1795; credentials dated No- vember 18, 1795; produced credentials and took seat December 18, 1795; resignation of James Jackson. Josiah Tatnall elected February 20, 1796, to fill unexpired term end- ing March 3, 1799; credentials dated February 27, 1796; produced credentials and took seatApriI12, 1796. 4. William Cocke, Tennessee.— Appointed April 22, 1797; produced credentials and - took seat May 15, 1797; expiration of his previous term on March 3, 1797, and non- election of a successor. Under these credentials Mr. Cocke held the seat the first ses- sion of the Fifth Congress, May 15 to July 10, 1797. Andrevr Jackson elected September 26, 1797, for term ending March 3, 1803; credentials dated October 19, 1797; produced credentials and took seat November 32, 1797. 5. William North, New York.— Appointed May 5, 1798; produced credentials and took seat May 21, 1798; resignation of John Sloss Hobart. James Watson elected August 17, 1798, to fill unexpired term ending March 3, 1803; produced credentials and took seat December 11, 1798. 6. Daniel Smith, Tennessee. — Appointed October 6, 1798; produced credentials and took seat December 3, 1798; resignation of Andrew Jackson. Joseph Anderson elected to fill unexpired term ending March 3, 1803; produced credentials and took seat De- cember 2, 1799. 7. Franklin Davenport, New Jersey. ^Appointed December 5, 1798; produced creden- tials and took seat December 19, 1798; resignation of John Eutherfurd. James Schure- man elected to fill unexpired term ending March 3, 1803; credentials dated February 14, 1799; produced credentials and took seat December 3, 1799. 8. -Uriah Tracy, Connecticut. — Appointed February 20, 1801; produced credentials and took seat March 4, 1801 ; vacancy about to result from expiration of his term, March 3, 1801, and non-election of a successor. Under these credentials Mr. Tracy held the seat during the special session of the Senate, March 4 and 5, 1801. In the following May he was elected for term ending March 3, 1807; credentials dated July 8, 1801; pro- duced credentials and took seat December 7, 1801. , 9. Samuel White, Delaware. — ^Appointed February 28, 1801; produced credentials and took seat March 4, 1801 ; resignation of Henry Latimer. Mr. White elected January 14, 1802, to fill unexpired term ending March 3, 1803; credentials dated January 15, 1802; produced credentials and took seat January 21, 1802. 10. William Hindman, Maryland. — Appointed March 4, 1801; produced credentials and took seat March 5, 1801; expiration of his previous term March 3, 1801, and non-elec- tion of a successor. Mr. Hindman held his seat under these credentials March 5, 1801. Robert Wright elected November 19, 1801, for term ending March 3,' 1807; produced credentials and took seat December 7, 1801. 11. George Logan, Pennsylvania. — Appointed July 13, 1801; produced credentials and took seat December 7, 1801 ; resignation of Peter Muhlenberg. Mr. Logan elected to fill unexpired teri^ ending March 3, 1807; credentials dated December 16, 1801; produced credentials and took seat December 21, 1801. 18. John Taylor, Virginia. — Appointed June 4, 1803; produced credentials and took seat October 17, 1803; death of Stephens Thompson Mason. Abraham Venable elected to fill unexpired term ending March 3, 1809; credentials dated December 8, 1803; pro- duced credentials and took seat December 13, 1803. 13. John Condit, New Jersey. — Appointed September 1, 1803; produced credentials and took seat October 17, 1803; expiration of term of Aaron Ogden ending March 3, 1803, Under these credentials Mr. Coudit held the seat from October 17 till Novem- APPOINTMENTS BY EXECUTIVES OF STATES. 49 ber 10, 1803. Mr. Conclit elected for term ending March 3, 1809; credentials dated November 3, 1803; produced credentials and took seat November 10, 1803. 14. .John Armstrong, New York. — Appointed November 10, 1803; produced creden- tials and took seat December 8, 1803; resignation of De Witt Clinton. John Smith elected February 4, 1804, to fill unexpired term ending March 3, 1807; produced cre- dentials and took seat February 23, 1804. 15. William B. Giles, Virginia. — Appointed August 11, 1804; produced credentials and took seat November 5, 1804; resignation of Abraham B. Venable. Andrevr Moore elected December 4, 1804, to fill unexpired term ending March 3, 1809; credentials dated December 5, 1804; produced credentials and took seat December 17, 1804. 16. Andrew Moore, Virginia. — Appointed August 11, 1804; produced credentials and took seat November 6, 1804; resignation of Wilson C. Nicholas. William B. Giles elected to fill unexpired term ending March 3, 1805; credentials dated December 5, 1804; produced credentials and took seat December 17, 1804. 17. George Jones, Georgia. — ;Appointed August 27, 1807; produced credentials and took seat October 26, 1807; death of Abraham Baldwin. William H. Crawford elected November 7, 1807, to fill unexpired term ending March 3, 1811; credentials dated No- vember 10, 1807; produced credentials and took seat December 9, 1807. 18. Joseph Anderson, Tennessee. — Appointed February 6, 1809 ; credentials read Feb- ruary 21, 1809; oath administered March 4, 1809; vacancy about to result from expira- tion of his term March 3, 1809, and non-election of a successor. Under these creden- tials Mr. Anderson held the seat during the special session of the Senate March 4 to March 7, 1809. Mr. Anderson elected April 11, ^809, for term ending March 3, 1815; credentials dated April 12, 1809; produced credentials and took seat May 22, 1809. 19. Samuel Smith, Maryland. — ^Appointed March 4, 1809; produced credentials and took seat March 4, 1809; expiration of his term and non-election of a successor. Under these credentials Mr. Smith held the seat during the extra session of the Senate, March 4-7, 1809, and during the first session of the Eleventh Congress, May 22 to June 28,1809. Mr. Smith elected November 16, 1809, for term ending- March 3, 1815; produced creden- tials and took seat December 4, 1809. 20. John Condit, New Jersey. — ^Appointed March 21, 1809; produced credentials and took seat May 24, 1809; resignation of Aaron Kitchell. Mr. Condit elected to fill unex- pired term ending March 3, 1811; credentials dated November 2, 1809; produced cre- dentials and took seat ])irovember 30, 1809. 21. Stanley Griswold, Ohio. — Appointed May 18, 1809; produced credentials and took seat June 2, 1809; resignation of Edward Tiffin. Alexander Campbell elected December 11, 1809, to fill unexpired term ending March 3, 1813; credentials dated December 12, 1809; produced credentials and took seat January 12, 1810. 22. Thomes Posey, Louisiana. — Appointed October 8, 1812; produced credentials and took seat December 7, 1812; resignation of John N. Destr6han. James Brown elected December 1, 1812, to fill unexpired term ending March 3, 1817; produced credentials and took seat February 5, 1813. 23. Charles Ciitts, New Hampshire. — ^Appointed April 2, 1813; produced credentials and took seat May 24, 1813; expiration of his previous term March 3, 1813, and non- election of a successor. Under these credentials Mr. Cutts held the seat from May 24- Jnne 21, 1813. ATeremiah Mason elected for term ending March 3, 1819; credentials dated June 10, 1813; produced credentials aocd took seat June 21, 1813. 24. William Bellinger Bullock, Georgia. — Appointed April 8, 1813; produced cre- dentials and took seat May 24, 1813; resignation of William H. Crawford. William Wyatt Bibb elected Novepiber 6, 1813, to fill unexpired term ending March 3, 1817; cre- dentials dated November 6, 1813; produced credentials and took seat December 6, J813. 25. Christopher Gore, Massachusetts. — Appointed May 5, 1813; produced credentials and took seat May 28, 1813; .resignation of James Lloyd. Mr. Gore electedMay 29, 1813, to fill unexpired term ending March 3, 1815; credentials dated May 29, 1813; pro- duced credentials and took seat June 4, 1813. 26. Jesse Wharton, Tennessee. — Appointed March 17, 1814; produced credentials and took seat April 9, 1814; resignation of George W. Campbell. John Williams elected October 4, 1815, to fill unexpired term ending March 3, 1817; credentials dated October 27, 1815; produced credentials and took seat December 4, 1815. 27. George Walker, Kentucky. — Appointed August 30, 1814; produced credentials and took seat October 10, 1814; resignation of George M. Bibb. William T. Barry elected December 16, 1814, to fill unexpired term ending March 3, 1817; credentials dated December 17, 1814; produced credentials and took seat February 2, 1815. 28. Martin D. Hardin, Kentucky. — Appointed November 13, 1816; produced creden- tials and took seat December 5, 1816; resignation of William T. Barry. Mr. Hardin elected December 5, 1816, to fill unexpired term ending Mfirch 3, 1817; credentials dated December 12, 1816; produced credentials and took seat December 24, 1816. 29. John- Williams, Tennessee.— Appointed January 20, 1817; credentials read Feb- ruary 10, 1817; took seat March 4, 1817; vacancy about to result from expiration of his gE C i 50 SENATE ELECTION CASES. terra, March 3, 1817, and non-election of his successor. Under these credentials Mr. Williams held the seat during the special session of the Senate, March 4-6, 1817. Mr. Williams elected October 2, 1817, for term ending March 3, 1823; credentials dated Oc- tober 4, 1817; produced credentials and took seat December 1, 1817. 30. John Henry Eaton, Tennessee.— Appointed September 5, 1818; produced creden- tials and took seat November 16, 1818; resignation of George W. Campbell. Mr. Eaton elected October 9, 1819, to fill unexpired term ending March 3, 1821; credentials dated October 11, 1819; produced credentials and took seat December 6, 1819. 31. David Holmes, Mississippi.— Appointed August 30, 1830; produced credentia,ls and took seat November 13, 1820; resignation of Walter Leake. Mr. Holmes held his seat under these credentials the remainder of the term ending March 3, 1821. January 17, 1821, he was elected for the succeeding term. 32. -Samuel L. Southard, New Jersey.— Appointed Jamiary 26, 1821; produced cre- dentials and took seat February 16, 1821; resignation of James J.Wilson. Under these credentials Mr. Southard held the seat for the remainder of the term ending March 3, 1821. He had been elected for the succeeding term; credentials dated November 15, 1820. 33. Henry W. Edwards, Connecticut.— Appointed October 8, 1823; produced creden- tials and took seat December 1, 1823; death of Elijah Boardman. Mr. Edwards elected first Wednesday in May, 1824, to fill unexpired term ending March -3, 1827; credentials dated May 31, 1824; produced credentials and took seat December 6, 1824. 34. James Lanman, Connecticut.— Appointed Februarys, 182.5; credentials read March 4, 1825; vacancy about to result from expiration of his term on March 3, 1825, and non- election of a successor. Mr, Lanman was not admitted on these credentials. Calvin Willey was afterwards elected for term ending March 3, 1831. 35. Powhatan Ellis, Mississippi.— Appointed September 28, 1825; produced credentials and took seat December 12, 1825; resignation of David Holmes. Thomas B. Eeed elected January 28, 1826, to fill unexpired term ending March 3, 1827; credentials dated Jan- uary 30, 1826; produced credentials and took seat March 11, 1826. 36. William Harper, South Carolina —Appointed March 8, 1826; produced <;reden- tialsand took seat March 28, 1826; death of John Gaillard. William Smith elected November 29, 1826, to fill unexpired term ending March 3, 1831; credentials dated November 30, 1826; produced credentials and took seat December 7, 1826. 37. Israel Pickens, Alabama. — Appointed February 20, 1826; produced credentials and took seat April 10, 1826; death or Henry Chambers. John McKinley elected to fill unexpired term ending March 3, 1831; credentials dated November 27, 1826; pro- duced credentials and took seat December 21, 1826. 38. Daniel Rodney, Delaware. — Appointed November 8, 1826; produced credentials and took seat December 4, 1826; death of Nicholas Van Dyke. H. M. Eidgely elected January 12, 1827, to fill unexpired term ending March 3, 1829; credentials read Jan- uary 19, 1827; took seat January 23, 1827. 39. George Poindexter, Mississippi. — Appointed October 15, 1830; produced creden- tials and took seat December 6, 1830; death of Robert H. Adams. Mr. Poindexter elected November 18, 1830, to fill unexpired term ending March 3, 1835; credentials dated November 25, 1830; produced credentials and took seat December 15, 1830. 40. David J. Baker, Illinois. — Appointed November 12, 1830; produced credentials and took seat December 6, 1830; death of John McLean. John M. Robinson elected to fill unexpired term ending March 3, 1835; credentials dated December 11, 1830; pro- duced credentials and took seat January 4, 1831. 41. Robert Han n a, Indiana. — Appointed August 19, 1831; produced credentials and took seat December 5, 1831; death of James Noble. John Tipton elected December 9, 1831 , to fill unexpired term ending March 3, 1833 ; credentials dated December 10, 1831 : produced credentials and took seat January 3, 1832. 42. John Black, Mississippi. — Appointed November 12, 1832; produced credentials and took seat December 12, 1832 ; to fill seat of Powhatan Ellis, vacated by his accept- ance of ofSce of .judge of a United States court. Under these credentials Mr. Black held the seat for the remainder of the term ending March 3, 1833. November 22, 1833, he was elected for the succeeding term, 43. Lewis F. Linn, Missouri.— Appointed October 25, 1833; produced credenbials and took seat December 16, 1833; death of Alexander Buckner. Mr. Linn elected Novem- ber 20, 1834, to fill unexpired term ending March 3, 1837; credentials dated November 20, 1834; produced credentials and took seat December 15, 1834. 44. John M. Niles, Connecticut.— Appointed December 14, 1835; produced credentials and took seat December 21, 1835; death of Nathan Smith. Mr. Niles elected to fill un- expired term ending March 3, 1839: credentials dated May 11, 1836; produced creden- tials and took seat May 16, 1836. 45. JudahDana, Maine. — Appointed December 7, 1836; produced credentialsandtook~ seat Peccmber 31, 1836 ; resignation of Ether Shepley. Ruel Wiiliaajs elected February APPOINTMENTS BY EXECUTIVES OF STATES. 51 22, 1837, to fill unexpired term endin'g March 3, 1839; credentials dated February 22, 1837; produced credentials and took seat March 4, 1837. 46. Ambrose H. Sevier, Arkansas. — Appointed January 17, 183''; credentials read February 27, 1837; oath administered March 8, 1837; vacancy about to result from expiration of his term March 4, 1837, and non-election of successor. Under these cre- dentials Mr. Sevier held the seat during the remainder of the special session, March 8-10, 1837, during the first session of the Twenty-fifth Congress, September 4-October 16, and from December 4-13 of the second session. November 7, '1837, he was elected for term ending March 3, 1843. 47. Ephraim H.Foster, Tennessee. — Appointed September 17, 1837; produced cre- dentials and took seat December 3, 1838 ; resignation of Felix Grundy. Mr. Foster held the seat under these credentials duripgthe remainder of the term ending March 3, 1839. He was elected for the succeeding term but resigned. 48. Thomas H. Williams, Mississippi. — Appointed November 12, 1838; produced cre- dentials and took" seat December 13, 1838; resignation of James F. Trotter. Mr, Williams elected January 30, 1839, to fill unexpired ierm ending March 3, 1839; credentials dated February 1, 1839;. produced credentials and took seat February 19, 1839. 49. Alfred O. P. Nicholson, Tennessee. — Appointed December 25, 1840; produced cre- dentials and took seat January 11, 1841 ; death of Felix Grundy. Ephraim H. Foster elected October 17, 1843, to fill unexpired term ending March 3, 1845; credentials dated November 13, 1843; produced credentials and took .seat December 4, 1843. ' 50. Leonard Wilcox, New Hampshire. — Appointed March 1, 1842; produced creden- tials and took seat March 7, 1842; resignation of Franklin Pierce. Mr. Wilcox elected to fill unexpired term ending March 3, 1843; credentials dated June 9, 1842; produced credentials and took seat June 13, 1842. 51. Samuel C. Crafts, "Vermont. — Appointed April 23, 1842; produced credentials and took seat April 30, 1842; resignation of Samuel Prentiss. Mr. Crafts elected October 26, 1842, to fill unexpired term ending March 3, 1843; credentials dated October 26, 1842; produced credentials and took seat December 7, 1842. 52. William L. Dayton, New Jersey. — Appointed July 2, 1842; produced credentials and took seat July 6, 1842; death of Samuel L. Southard. Mr. Dayton elected Octo- ber 28, 1842, to fill unexpired term ending March 3, 1845; credentials dated November 8, 1842; produced credentials and took seat December 7, 1842. 53. James Semple, Illinois. — Appointed August 16, 1843; produced credentials and took seat December 4, 1843; death of Samuel McRoberts. Mr. Semple elected Decem- ber 11, 1844, to fill unexpired term ending March 3, 1847; credentials dated December 19, 1844; produced credentials and took seat, January 28, 1845. 54. David E. Atchison, Missouri. — Appointed October 15, 1843; produced credentials and took seat December 4, 1843; death of Lewis F. Linn. Mr. Atchison elected No- vember 20, 1844, to fill unexpired term ending March 3, 1849; produced credentials and took seat December 9, 1844. 55. Dixon H. Lewis, Alabama. — Appointed April 22, 1S44; produced credentials and took seat May 7, 1844; resignation of "William E. King. Mr. Lewis elected to fill unex- pired term ending March 3, 1847; credentials dated December 10, 1844; produced cre- dentials and took seat January 28, 1845. 56. Henry A. Foster, New York. — Appointed November 30, 1844; produced creden- tials and took seat December 9, 1844; resignation of Silas Wright. John A. Dix elected •January 18, 1845, to fill unexpired term ending March 3, 1849; produced credentials and took seat January 27, 1849. 57. Daniel S. Dickinson, New York. — Appointed November 30, 1844; produced cre- dentials and took seat December 9, 1844; resignation of Nathtoiel P. Tallmadge. Mr. Dickinson elected January 18, 1845, to fill unexpired term ending March 3, 1845; pro- duced credentials and took seat January 27, 1845. 58. Joseph-W. Chalmers, Mississippi. — Appointed November 3, 1845; produced cre- dentials and took seaf December 1, 1845; death of Robert J. Walker. Mr. Chalmers elected January 10, 1846, to fill unexpired term ending March 3, 1847; credentials dated January 16, 1846; produced credentials and took seat February 4, 1846. 59. Eenning W.Jenness, New Hampshire. — Appointed November 12,1845; produced credentials and took seat December 1, 1845; resignation of Levi Woodbury. Joseph Cilley elected to fill unexpired term ending March 3, 1847; credentials dated June 13, 1846; produced credentials and took seat June 22, 1846. 60. Jefferson Davis, Mississippi. — Appointed August 10, 1847; produced credentials and took seat December 0, 1847; death of Jesse Speight. Mr. Daviselected January 11, 1848, to fill unexpired term ending March 3, 1851; credentials dated January 31, 1848; pro- duced credentials and took seift February 15, 1848. 61. Eoger S- Baldwin, Connecticut. — A"ppointed November 11, 1847; produced cre- dentials and took seat December 7, 1847; death of Jabez W. Huntington. Mr. Baldwin elected first Wednesday of May, 1848, to fill unexpired term ending March 3, 1851; cre- dentials dated June 1, 1848; produced credentials and took seat June 5, 1848. 52 SENATE ELECTION CASES. ' 62. Wyman B. S. Moor, Maine.— Appointed January 5, 1848; produced credentials and took seat January 17, 1848; death of Jt)hn Fairfield. Hannibal Hamlin elected May 26, 1848, to fill unexpired term ending March 3, 1851 ; produced credentials and took seat June 12, 1848. 63. Herschell V. Johnson, Georgia.— Appointed February 4, 1848; produced credei^- tials and took seat February 14, 1848; resignation of Walter T. Colquitt. Under these credentials Mr. Johnson held the seat for the remainder of the term ending March 3, 1849. William C. Dawson had been elected for the succeeding term on November 13, 1847. 64. Solon Borland, Arkansas.— Appointed March 30, 1848; produced credentials and took seat April 24, 1848; resignation of Ambrose H. Sevier. Mr. Borland elected No- vember 17, 1848, to fill unexpired term ending March 3, 1849; credentials daoed No- vember 20, 1849; produced credentials and took seat December 11, 1848. 65. William K. Sebastian, Arkansas.— Appointed May 12, 1848; produced credentials and took seat May 31, 1848; death of Chester Ashley. Mr. Sebastian elected November 17, 1848, to fill unexpired term ending March 3, 1853; credentials dated November 20, 1848; produced credentials and took seat December 21, 1848. 66. Thomas Fitzgerald, Michigan.— Appointed June 8, 1848; produced credentials and took seat June 20, 1848; resignation of Lewis Cass. Lewis Cass electfed January .20, 1849, to fill his own unexpired term ending March 3, 1851; produced credentials and took seat March 3, 1849. 67. Thomas Metcalfe, Kentucky.— Appointed June 23, 1848; produced credentials and took seat July 3, 1848; resignation of John J. Crittenden. Mr. Metcalfe elected January 3, 1849, to fill unexpired term ending March 3, 1849; credentials dated January 3, 1849; produced credentials and took seat January 26, 1849. 68. William R. King, Alabama.— Appointed July 1, 1848; produced credentials and took seat July 13, 1848; resignation of Arthur P. Bagby. Under these credentials Mr. King held his seat the remainder of the terra ending March 3, 1849. He was elected for succeeding term November 30, 1849. The seat was vacant during the special ses- sion of the Senate in 1849. 69. Benjamin Fitzpatrick, Alabama. — Appointed November 25, 1848; produced cre- dentialsand took seat December 11, 1848; death of Dixon H. I.,ewis. Jeremiah Clemens elected to fill unexpired term ending March 3, 1853; credentials dated November 30, 1849; produced credentials and took seat December 6, 1849. 70. David Stewart, Maryland. — Appointed December 6, 1849; produced credentials and took seat December 8, 1849; resignation of Eeverdy Johnson. Thomas Gr. Pratt elected to fill unexpired term ending March 3, 1851 ; credentials dated January 12, 1850; produced credentials and took seat January 14, 1850. 71. Franklin H. Elmore, South Carolina. — Appointed April 11, 1850; credentials read April 16, 1850; took seat May. 6, 1850; death of John Caldwell Calhoun. Robert W. Barnwell appointed June 4, 1850, on death of Franklin H. Elmore; produced cre- dentials and took seat June 24, 1850. R. Barnwell Ehett elected December 18, 1850, for unexpired term of J. C. Calhoun ending March 3, 1853; credentials dated December 20, 1850; produced credentials and took seat January 6, 1851. 72. Robert W. Barnwell, South Carolina. — ^ Appointed June 4, 1850; produced creden-' tials and took seat June 24, 1850; death of Franklin H. Elmore, who had been appointed by governor to fill vacancy happening by death of John Caldwell Calhoun. Robert Barnwell Rhett elected December 18, 1850, for remainder of term of J. C. Calhoun end- ing March 3, 1853; credentials dated December 20, 1850; produced credentials and took seat January 6, 1851. 73. Robert C. Winthrop, Massachusetts. — Appointed July 27, 1850; produced cireden- tials and took seat July 30, 1850; resignation of Daniel Webster. Robert Rantoul elected February 1, 1851, to fill unexpired term ending March 3, 1851; credentials read February 7; 1851; took seat February 22, 1851. 74. John I. McEae, Mississippi. — Appointed December 1, 1851; produced credentials " and took seat December 19, 1851 ; resignation of Jefferson Davis. Stephen Adams elected February 19, 1852, to fill unexpired term ending March 3, 1857; produced credentials and took seat March 17, 1852. 75. William F. Desaussure, South Carolina. — Appointed May 10, 1852; produced cre- dentials and took seat May 24, 1852; resignation of R. Barnwell Rhett. Mr. Desaussure elected November 29,-1852, to fill unexpired term ending March 3, 1853; credentials dated December 9, 1852; produoM credentials and took seat December 20, 1852. 76. Robert M. Charlton, Georgia.— Appointed May 18, 1852; produced credentials sand took seat June 11, 1852; resignation of John M. Berrien. Under these credentials Mr. Charlton held the seat the remainder of the term ending March 3, 1853. Robert Toombs had on November 10, 1851, been elected for succeeding term. 77. Pav)dMeriwether,K;entucky.— Appointed July 6, 1852; produced credentials and APPOINTMENTS BY EXECUTIVES OP STATES. 5B took seat July 15, 1852; death of Henry Clay. Under these credentials Mr. Meri- wether held the seat till September 1, 1852. Archibald Dixon had been elected Decem- ber 30, 1851, to fill unexpired term ending March 3, 1855, about to result from resig- nation of Mr. Clay, which had been made and was to take effect the first Monday in September. 1852. Mr. Dixon's credentials read December 6, 1852; took seat December 20, 1852. 78. Charles W. Cathcart, Indiana. — Appointed November 23, 1852;. produced cre- dentials and took seat December 6, 1852; death of James Whitcomb.' John Pettit elected January 11, 1853, to fill unexpired term ending March 3, 1855; credentials dated January 11, 1855; ^produced credentials and took seat January 18, 1853. 79. Samuels. Phelps, Vermont. — Appointed January 17, 1853; produced credentials and took seat January 17, 1853; death of William Upham. Lawrence Brainerd elected to fill unexpired term end'ing March 3, 1855; credentials dated October 14, 1854; pro- duced credentials and took seat December 4, 1854. 80. Benjamin Fitzpatrick, Alabama. — Appointed January 14, 1853; produced creden- tials and took seat January 20, 1853; resignation of William E. King. Mr. Fitzgerald elected to fill unexpired term ending March 3,1855; credentials dated December 12, 1853; produced credentials and took seat December 19, 1853. 81. Eobert W. Johnson, Arkansas. — Appointed July 6, 1853; produced credentials and took seat December 5, 1853; resignation of Solon Borland. Mr. Johnson elected Novem- ber 10, 1854, to fill unexpired term ending March 3, 1855; credentials dated November 24, 1854; produced credentials and took seat December 18, 1854. 82. Jared W. Williams, New Hampshire. — Appointed November 29, 1853; produced credentials and took seat December 12, 1853; death of Charles G. Atherton. Under these credentials Mr. Williams held the seat until August 4, lS54, when it was deter- mined that the ' ' right of representation under appointment ' ' had expired. John P. Hale elected to fill unexpired term ending March 3, 1859; credentials dated July 30, 1855; produced credentials and took seat December 4, 1855. 83. Julius Eockwell, Massachusetts. — Appointed June 3, 1854, produced credentials and took seat June 15, 1854; resignation of Edward Everett. Henry Wilson elected to fill unexpired term ending March 3, 1859; credentials dated February 1, 1855; produced credentials and took seat February 10, 1855. 84. John S. Wells, New Hampshire. — Appointed January 16, 1855; produced cre- dentials and took seat January 22, 1855 ; death of Moses Norris. Under these credentials Mr. Wells held the seat the remainder of the term ending March 3, 1855. James Bell elected for succeeding term; credentials dated July 30, 1855. 85. Joseph P. Comegys, Delaware. — Appointed November 19, 1856; produced cre- dentials and took seat December 4, 1856; death of John W. Clayton. Martin W. Bates elected January 14, 1857, to fill unexpired term ending March 3, 1859; credentials dated January 14, 1857; credentials read January 19, 1857; took seat December 6, 1858. 86. Thomas L. Clingman, North Carolina. — Appointed May 6, 1858; produced cre- dentials and took seat May 7, 1858; resignation of Asa Biggs. Mr. Clingman elected to fill unexpired term ending March 3, 1861; credentials dated November 23, 1858; pro- duced credentials and took seat December 6, 1858. 87. Arthur P. Hayne, South Carolina. — Appointed May 11, 1858; produced credentials and took seat May 20, 1858; death of Josiah J. Evans. James Chestnut, jr., electe(i December 4, 1858, to fill unexpired term ending March 3, 1859; credentials dated De- cember 7, 1858; produced credentials and took seat' January 5, 1859. 88. Matthias Ward, Texas. — Appointed" September 27, 1858; produced credentials and took seat December 6, 1858; death of J. Pinkney Henderson. Louis T. Wigfall elected December 5, 1859, to fill unexpired term ending March 3, 1863; credentials dated De- cember 8, 1859; produced credentials and took seat January 4, 1860. - 89. Henry P. Haun, California. — Appointed November 3, 1859; produced credentials and took seat December 5, 1859; death of David C. Broderick. Milton S. Latham elected January 11, 1860, to fill unexpired term ending March 3, 1863; credentials dated Janaary 14, 1860; produced credentials and took seat March 5, 1860. 90. Orville H. Browning, Illinois.-;— Appointed June 26, 1861; produced credentials and took seat July 4, 1861; death of Stephen A. Douglas. William A. Eichardson elected ^[anuary 12, 1863, to fill unexpired term ending March 3, 1865; credentials dated January 12, 1863; produced credentials and took seat January 30, 1863. 91. Eobert Wilson, Missouri. — Apipointed January 17, 1862; produced credentials and took seat January 24, 1862; expulsion of Waldo P. Johnson. B. Gratz Brown elected November 13, 1863, to fill unexpired term ending March 3, 1867; credentials dated No- vember 14, 1863; produced credentials and took seat December 14, 1863. 92. John B. Henderson, Missouri. — Appointed January 17, 1862; produced creden- tials and took seat January 29, 1862; expulsion of Trusten Polk. Mr. Henderson elected January 6, 1863, to fill unexpired term ending March 3, 1863; credentials dated February 12, 1863; pfoduced credentials and took seat February 18, 1863. 54 SENATE ELECTION CASES. 93. Beniamin Stark, Oregon.— Appointed October 29, 1«61; credentials presented,Taii- uary 6, 1862; took seat February 27, 1862; death of E. D. Baker. Benjamin F. Hara ing elected September 12, 1862, to fill unexpired term ending March 3, 1865; credeiitiais dated September 26, 1862; produced credentials and took seat December 1, 1862. 94. Joseph A. Wright, Indiana.— Appointed February 24, 1862; produced credentials and took seat March 3, 1862; expulsion of Jesse D: Bright. David Turpie electea Jan- nary 14, 1863, to fill unexpired term ending March 3, 1863; credentials dated January 14, 1863; produced credentials and took seat January 22, 1863. 95. Richard S. Field, New Jersey.— Appointed November 21, 1862; produced ereclen- tials and took seat December 1, 1862; death 'of John E. Thompson. James W. Wall elected January 14, 1863, to fill unexpired term ending March 3, 1863; produced cre- dentials and took seat January 21, 1863. 96. Thomas H. Hicks, Maryland.— Appointed December 29, 1862; produced creden- tials and took seat January 14, 1863; death of James A. Pearce. Mr. Hicks elected to fill unexpired term ending March 3, 1867; produced credentials and took seat January 19, 1864. ^ ^. , 97. Nathan A. Farwell, Maint.— Appointed October 27, 1864; produced credentials and took seat December 5, 1864; resignation of William Pitt Fessenden. Mr. Farwell elected January 11, 1865, to fill unexpired term ending March 3, 1865; credentials dated January 12, 1865; produced credentials and took seat February G, 1865. 98. Luke P. Poland, Vermont.— Appointed November 21, 1865; jjroduced credentials and took seat December 4, 1865; death of Jacob Collamer. Mr. Poland elected October 24, 1866, to fill unexpired term ending March 3, 1867; produced credentials and took seat December 3, 1866. 99. George F. Edmunds, Vermont.- Appointed April 3, 1866; produced credentials and took seat April 5, 1866; death of Solomon Foot. Mr. Edmunds elected October 24, 1866, to fill unexpired term ending March 3, 1869; credentials dated October 24, 1866; produced credentials and took seat December 3, 1866. 100. Edmund G. Eoss, Kansas.— Appointed July 19, 1866; produced credentialsand took seat July 25, 1866; death of James H. Lane. Mr. Eoss elected January 23, 1867, to fill unexpired term ending March 3, 1871; credentials dated January 24, 1867; pro- duced credentials and took seat February 14, 1867. 101. George a. Fogg, New Hampshire.— Appointed August 31, 1866; produced cre- dentials and took seat December 3, 1866; re.signation of Daniel Clark. Mr. Fogg held the seat under these credentials the remainder of the term ending March 3, 1867. James W. Patterson had on August 29, 1866, been elected for succeeding term. 102. F. T. Frelinghuysen, New Jersey.— Appointed November 12, 1866; produced cre- dentials and took seat December 3, 1866; death of William Wright. Mr. Frelinghuysen elected to fill unexpired term ending March 3, 1869; credentials dated January 23, 1867; produced credentials and took seat January 24, 1867. 103. Jaines A. Bayard, Delaware. — Appointed April 5, 1867; produced credentials and took seat April 11, 1867; death of George Eead Eiddle. Mr. Bayard elected January 19, 1869, to fill unexpired term ending March'3, 1869; credentials dated January 20, 1869; produced credentials and took seat January 22, 1869. 104. William Pinkney Whyte, Maryland.- — Appointed July 13, 1868; produced cre- dentials and took seat July 14, 1868; resignation of Eeverdy Johnson. Under these cre- dentials Mr. Whyte held the seg,t the remainder of the term ending March 3, 1869. William T. Hamilton had been elected for the succeeding term ; credentials dated Feb- ruary 7, 1868. 105. Lot M. Morrill, Maine. — Appointed October 30, 1869; produced credentialsand took seat December 6, 1869; death of William Pitt Fessenden. Mr. Morrill elected Jan- uary 19, 1870, to fill unexpired term ending March 3, 1871 ; produced credentials and took seat January 24, 1870. 106. William Windom, Minnesota. — Appointed July 16, 1870; produced credentials and.took seat December 5, 1870; death of Daniel S. Norton. O. P. Stearns elected Jan- uary 18, 1871, to fill unexpired term ending March 3, 1871; produced credentials and took seat January 25, 1871. 107. Daniel T. Jewitt, Missouri. — Appointed December 19, 1870 ; produced credentials and took seat December 22, 1870; resignation of Charles I). Drake. Francis P. Blair elected to fill unexpired term ending March 3, 1873; credentials dated January 20, 1871 ; credentials read January 24, 1871; took seat January 25, 1871. 108. Willis B. Machen, Kentucky. — Appointed September 27, 1872; produced cre- dentials and took seat December 2, 1872; death of Garrett Davis. Mr. Machen elected January 21, 1873, to fill unexpired term ending March 3, 1873; credentials dated Feb- ruary 3, 1873; produced credentials and took seat February 10, 1873. 109. Eobert Crozier, Kansas. — Appointed November 24, 1873; produced credentials and took seat December 1, 1873; resignation of Alexander Caldwell. James M. Harvey APPOINTMENTS BY EXEC-tJTlVES OF STATES. 55 elected February 2, 1874, to fill unexpire#term ending March 3, 1877; credentials dated February 7, 1874; produced credentials and took seat February 12, 1874. 110. William W. Eaton, Connecticut. — Appointed February 10, 1875; produced cre- dentials and took seat February 13, 1875; death of William A. Buckingham. Under this appointment Mr. Eaton held his seat duringthe remainderof the term ending March 3, 1875. He had been elected May 20, 1874, lor the succeeding term. 111. David M. Key, Tennessee. — Appointed August 18, 1875;- produced credentials and took seat December 6, 1875; death of Andrew Johnson. .James E. Bailey elected Jannai-y 19, 1877, to fill unexpired term ending March 3, 1881; credentials dated Jan- uary 20, 1877; credentials read January 24, 1877; took seat January 29, 1877. 112. James E. English, Connecticut. —Appointed November 27, 1875; produced cre- dentials and took seat December 7, 1875; death of Orris S. Ferry. William H. Barnnm elected May 16, 1876, to fill unexpired term ending March 3, 1879; credentials dated May 17, 1876; produced credentials and took seat May 22, 1876. 113. Robert H. Marr, Louisiana. — Appointed December 16, 1875; credentials read Deceniber 20, 1875; resignation of William L. McMillen. Neither Mr. McMillen nor Mr. MaiT was admitted. 114. James G. Blaine, Maine. — Appointed July 10, 1876; credentials read July 12, 1876; took seat December 4, 1876; resignation of Lot M. Morrill. Mr. Blaine elected January 16, 1877, to fill unexpired term ending March 3, 1877; credentials dated Jan- uary 17, 1877; credentials read January 19, 1877; took seat January 22, 1877. 115. Samuel Price, West Virginia. — Appointed August 26, 1876; produced Credentials and took seat December 4, 1876; death of Allen T. Caperton. Frank Hereford elected January 26, 1877, to fill unexpired term ending March 3, 1881; credentials dated Jan- uary 29, 1877; produced credentials and took seat January 31, 1877. 116. David H. Armstrong, Missouri. — Appointed September 29, 1877; produced cre- dentials and took seat October 16, 1877; death of Louis V. Bogy. Under these creden- tials Mr. Armstrong held the seat the remainder of the term ending March 3, 1879. George G. Vest elected January 22, 1879, tor succeeding term. 117. Daniel W. Voorhees, Indiana. — Appointed November 6, 1877; produced creden- tials and took seat November 12, 1877; death of Oliver P. Morton. Mr. Voorhees elected to fill unexpired term ending March 3, 1879; credentials dated January 31, 1879; pro- duced credentials and took seat February 3, 1879. 118. Charles H. Bell, New Hampshire. — Appointed March 13, 1879; credentials read March 18, 1879; took seat April 10, 1879; expiration of term of Bainbridge Wadleigh, ending March 3, 1879, and non-election of a successor. Henry W. Blair elected June 17, 1879, for term ending March 3, 1885; credentials dated June 18,, 1879; produced creden- tials and took seat ^une 20, 1879. 119. Henry P. Baldwin, Michigan. — Appointed November 17, 1879; produced creden- tials and took seat December 3, 1879; death of Zacliariah Chandler. Mr. Baldwin elected January 18, 1881, to fill unexpired term ending March 3, 1881; credentials dated January20, 1881; produced credentials and took seat January 31, 1881. 120. Luke Pryor, Alabama. — Appointed .January 7, 1880; produced credentials and took seat January 15, 1880; death of G. S. Plouston. James L. Pugh elected Novem- ber 24, 1880, to fill unexpired term ending March 3, 1885; credentials dated November 29, 1880; produced credentials and took seat December 6, 1880. 121. Joseph E. Brown, Georgia. — Appointed May 21, 1880; produced credentials and took seat May 26, 1880; resignation of John B. Gordon. Mr. Brown elected November 16, 1880, to fill unexpired term ending March 3, 1885; credentials dated December 2, 1880; produced credentials and took seat December 6, 1880. 122. Thomas Courtland Manning, Louisiana. — Appointed November 16, 1880; cre- dentials read December 7, 1880; death of Henry M. Spofford, claimant of seat held, by William Pitt Kellogg. Mr. Manning not admitted. Mr. Kellogg held the seat during the term. 123. James W. McDill, Iowa. — Appointed March 8, 1881; produced credentials and took seat March 14, 1881; resignation of Samuel J. Kirkwood. Mr. McDill elected Jan- uary 18, 1882, to fill unexpired term ending March 3, 1883; credentials dated January 19, 1882; produced credentials and took seat January 24, 1882. 124. Alonzo J. Edgerton, Minnesota. — Appointed March 12, 1881; produced creden- tials and took seat March 17, 1881 ; resignation of William Windom. William Windom elected October 26, 1881, to fill his own unexpired term ending March 3, 1883; creden- tials dated October 27, 1881; produced credentials and took seat December 5, 1881. 125. George M. Chilcott, Colorado. — Appointed April 11,1882; produced credentials and .took seat April 17, 1882; resignation of Henry M. Teller. Horace A. W. Tabor elected January 27, 1883, to fill unexpired term ending March 3, 1883; credentials dated January 27, 1883; produced credentials and took seat February 2, 1883. 126. William P. Sheffield, Rhode Island.— Appointed November 19, 1884; credentials 56 SENATE ELECTION CASES. read December 1, 1S84; took seat December 2, 1884; death of Henry B. Anthony. Jonathan Chace elected January 20, 1885, to fill unexpired term ending March 3, 1889; credentials dated January 21, 1885; credentials read January 24, 1885; took seat January 26, 1885. 127. Henry W. Blair, New Hampshire.— Appointed March 5, 1885; credentials read March 9, 1885; took seat March 10, 1885; expiration of his previous term, ending March 3, 1885, and non-election of a successor. Mr. Blair elected June 16, 1885. 128. E. C. Walthall, Mississippi.— Appointed March 9, 1885;- produced credentials and took seat March 12, 1885; resignation of L. Q. C. Lamar. Election to fill unexpired term ending March 3, 1889, not yet [December 1, 1885] taken place. SENATE ELECTION CASES. II. MISCELLANEOUS CASES. [Third Congress — First session.] ALBERT GALLATIlSr, Senator from Pennsylvania from December 2, 179'^, to February ^8, 1794. Albert Gallatin, a native of Geneva, came to Boston, Mass., in 1780. After changing his residence. a few times lie went, in November, 1783, to Virginia, where he had purchJised lands. In October, 1785, he toQk an oath of allegiance to Virginia. In December, 1785, he purchased a plantation in Fayette County, Pennsylvania, on which he was living in 1793. On the 28th of February, 1793, he was elected from that State to the Senate of the United States, which office he held until February 28, 1794, when it was determined that he was not entitled to his seat, not having been "nine years a citizen of the TTnited States." The history of th-e case here givQn consists of a transcript of the proceedings of the Senate relat- ing to it from the Annans of Congress, 3d Cong., 1793-95, -within pages 9-61. It will be observed that the Senate resolved that the doors of the Senate be opened during the dis- cussion upon this contested election. A discussion of the merits of this case, and of the decision of the Senate regarding it, may be found in the "Life of Albert Gallatin," by Henry Adams, pages 119, 120. Monday, Deqember 2, 1793. The Vice-President administered the oath required by law to Mr. Gallatin, and he took his seat. The Vice-President laid hefore the Senate the petition of Conrad Laub and others, rel- ative to the appointment, of, Mr. Gallatin, a Senator of the United States; which was read and ordered to lie on the table. > Wednesday, December 11, 1793. Ordered, That Messrs. Eutherfurd, Cabot, Ellsworth, Livermore, and Mitchell be a committee to take into consideration the petition of Conrad Laub and others, stating that the Hon. Albert Gallatin, at the time he was elected a Senator of the United States, had not been nine years a citizen of the said United States, as is required by the Consti- 1 tution, and report thereon to the Senate. Tuesday, December 31, 1793. Mr. Eutherfurd reported, from the committee to whom was referred the petition of Conrad Laub and others, stating that the Hon. Albert Gallatin, at the time he was elected a Senator of the United States, had not been nine years a citizen of the said United'States, as is required by the Constitution; which report was reiid and ordered to lie for consideration. Wednesday, January 1, 1794. The_ Senate proceeded to the consideration of the report of the committee to whom was referred the petition of Conrad Laub and others. On motion to postpone the consideration of the report until to-morrow, it was agreed to amend this motion by striking out the word ' ' to-morrow, ' ' and to insert in lieu thereof, ' ' Thursday, the 9th instant. ' '■ Thursday, January 9, 1794. Agreeably to the order of the day, the Senate took into consideration the report of the committee on the petition of Conrad Laub and others, respecting the appointment of Albert Gallatin to be a Senator of the United States. On motion. Ordered, That the further consideration of the report be postponed until to-morrow. 57 58 SENATE ELECTION CASES. Friday, January 10, 1794. The Senate tesnmed the consideration pf the report of the committee on the petition of Conrad Laub and others, respecting the appointment of Albert Gallatin, a Senator of the United States; which report is as follows: EEPOET OF SELECT COMMITTEE. [This committee consisted of Messrs. Rutherford, Cabot, Ellsworth, Livermore, and Mitchell.] The committee, to whom was referred the petition of Conrad Laub and others, stating that Albert Gallatin, at the time he was elected a Senator of the United States, had not been nine years a citizen of the said United States, as is required by the Constitution, report : That the committee have conferred with Mr. Michael Schmyser, agent for the pe- titioners, and with Mr. Gallatin; that Mr. Schmyser has declared that the petitioners are ready to adduce proofs in support of the petition at such time as the Senate may think proper to appoint; that Mr. Gallatin states no objection to the trial's commencing at an early day. The committee therefore recommend that the Senate agree to the fol- lowing resolution : . Eesolved, That be assigned for hearing the petition of Conrad Laub and others, respecting" Mr. Gallatin's right to a seat in the Senate, and that Messrs. Gallatin and Schmyser be furnished with a copy of this resolution. On motion, it was agreed to postpone the report of the committee, and to take into consideration the following resolution : "Eesolved, That a committee of elections, to consist of seven, be appointed to re- port rules for receiving petitions and conducting Inquiries relative to the qualifications of a Senator; and that the petition of Conrad Laub and others be referred to the same committee, to state the facts, and that they be authorize^ to send for persons and pa- pers. ' ' On which a motion was made and seconded to postpone this motion and to take up the following : "That be a committee to ascertain and state to the Senate the facts relative_to the time when 'Albert Gallatin became a citizen of the United States, and that the said committee have power to send for persons and papers. ' ' Whereupon a motion was made and seconded to postpone the preceding, and to take into consideration the following motion : "Resolved, That a committee of elections be appointed, and that the petition of Conrad Laub and others be referred to it, to report their ' opinion on the merits of the said petition." And, after debate, the Senate adjourned. Monday, January 13, 1794. The Senate resumed the consideration of the petition of Conrad Laub and others,' ra- specting the appointment of Mr. Gallatin to be a Senator of the United States. On motion. Ordered, That a committee of elections, to consist of seven, be appointed, and that the petition of Conrad Laub and others be referred, without prejudice as to any ques- tions which may, upon the hearing, be raised by the sitting member, as to the sufii- ciency of the parties and the matter charged in the petition, to the same committee, to state the facts, and that they be authorized to send for persons and papers; also, that Messrs. Bradley, Ellsworth, Mitchell, Eutherfurd, Brown, Livermore, and Taylor be thiscommittee. Monday, February 10, 1794. Mr. Bradley reported from the committee to whom was referred the petition of Con- rad Laub and others, respecting the appointment of Mr. Gallatin to be a Senator of the United States; and the report was read. Ordered, That Wednesday next be assigned to take this report into consideration, and that in the mean time it be printed for the use of the Senate. On motion that the Senate adopt the following resolution: "Resolved, That the doors of the Senate be opened, and continue open, during the dia- . cussion upon the contested election of Albert Gallatin," - Ordered, That this motion lie on the table until to-morrow. ALBERT GALLATIN. 59 Tuesday, Febrvxtry 11, 1794. Agreeably to the order of the day, the( Senate took into consideration the motion made yesterday that the doors of the Senate be opened during the discussion of the contested election of Mr. Gallatin. Whereupon, Resolved, That the doors of the Senate he opened, and continue open,, during the dis- cussion upon the contested election of Albert Gallatin. "Wednesday, February 12, 1794. On motion that the consideration of the report of the committee on the petition of Conrad Laub and others respecting the appointment of Mr. Gallatin to be a Senator of the United States be postponed until Monday next, it was passed in the affirmative. , Monday, February 17, 1794. The petition of Michael Sohmyserj agent for Conrad Laub and others, petitioners against the election of Albert Gallatin to be a Senator of the United States, was pre- sented and read, praying to be heard by counsel. Ordered, That the prayer of the petition be granted. The consideration of the report of the committee on the petition of Conrad Laub and others, respecting the election of Mr. Gallatin to be a Senator of the United States, was resumed, and, after progress, it was ordered that the consideration thereof be post- poned until Wednesday next. Wednesday, February 19, 1794. Agreeably to the order of the day, the Senate resumed the consideration of the report of the committee on the petition of Conrad Laub and others, respecting the election of Mr. Gallatin to be a Senator of the United States. Ordered, That the consideration thereof be further postponed until to-morrow. Thuesday', February 20, 1794. Agreeably to the order of the day, the Senate resunled the consideration of the report of the committee on the petition of Conrad Laub and others, respecting the election of Mr. Gallatin to be a Senator of the United States. The report of the committee states the evidence, and concludes with an opinion that to controvert the allegations set forth in the petition against Mr. Gallatin it lays with him to prove his citizenship. Accordingly Mr. Gallatin presented a written statement of facts, which the President of the Senate read. It contained a narrative of several transactions from the time of Mr. Gallatin's arrival in the Province of Maine, or Massachusetts, about thirteen years ago; of his having contributed by money and his ovm services as a volunteer in the cause of the Revolution; of his having taken oaths of allegiance and purchasfed lands in that State, and also in the State of Virginia. In the back parts of the last-mentioned State he had formed an interesting settlement, and had been extremely useful in bring- ing settlers from Europe. The dates of those transactions and times of his arrival in Pennsylvania and of being sent to the State convention are also recited, up to the-time of his being chosen one of their representatives in the Senate of the United States. After the President had done reading the statement of facts, Mr. Gallatin addressed the Senate by observing that he felt himself rather in an awkward predicament, not knowing whether, the counsel for the prosecutors or himself were the proper persons to speak the first, as this preliminary was not yet laid down by the Senate; neither had he provided any counsel. He should have supposed himself in the situation of defendant were it not that the weight of proving the affirmative in regard to citizenship had been laid on him, under which predicament it might perhaps be necessary for him to begin, and after the counsel for the petitioners had spoken that he should then be allowed to close the arguments. Mr. Livermore was of opinion that the sitting member should begin the debate, as the onus probandi lay y/itb. Mtcl. The counsel for the petitioners, Mr. Lewis, rose. He was attended by Mr. Schmyser, one of the members of th& senate of Pennsylvania, who, we understand, manages the prosecution on the part of the petitioners. Mr. Lewis hoped he would be permitted to say a few words in the early stage of the business in regard to the manner of conducting it. He recapitulated sundry offices and posts of honor that had been conferred on him, from which he humbly presumed he had gathered much experience, and particularly in cases of contested elections. He would, therefore, beg leave ol' the honorable Senate to offer an observation before they should determine on the mode of conducting the trial. When the question for postponement, which was debated the other day, was before theni the sitting member did then consider himself as defendant, and for an hour had fought 60 SENATE ELECTION CA&ES. phantoms of his own imagiDation ; but now he has changed his ground and desires to have the privileges which belong to the petitioners only, namely, the right of opening the prosecution and afterwards concluding the arguments. Mr. Gallatin submitted to the decision of the Senate, and said he did not wish to con- tend for mere matters of form. Mr. Martin, from North Carolina, thought it immaterial who began or concluded, if in the end the Senate should be enabled to arrive at a just degree of information. Mr. Jackson, from Georgia, made some observations on the manner of conducting the business. He thought it would be incumbent on the counsel for the petitioners to prove that Mr. Gallatin was not a citizen, &c. Mr. King, irom New York, and some other gentleman of the Senate said a few more words on the motion; it was agreed that the sitting member should begin. ^ Mr. Gallatin accordingly rose and recapitulated the facts stated in the written paper which he had presented to the President, commenting on each of them as he proceeded. He proved that he had been an inhabitant of the United States for thirteen years, and was one before the peace of 1783 and before the Confederation. He quoted the laws previous thereto respecting aliens, and also the British statutes, and he maintained that they were all done away by the Eevolution. He conceived himself a citizen in common with the other citizens of the United States from the time of his first qualifying after his arrival and attachment to the country. He concluded by saying he would reserve the remainder of his defense until after he should hear the oo.unsel on behalf of the peti- tioners. Mr. Lewis commenced his speech by observing ohat he appeared there on behalf of Conrad Laub and other respectable men who complained of the unconstitutionality of admitting Mr. Gallatin to a seat in the Senate. He was glad to find by the gentleman's expressions that the ground of debate had been narrowed into so small a compass, and he would therefore take him up from the argument where he had left off speaking, that of his being a citizen in common of the United States from the time of his qualifying in Massachusetts or Virginia. But in Virginia two oaths are required, and they must be taken in a court, not before a magistrate, to entitle a man to citizenship. He must also be possessed of a certain quantity of property and be a resident for two years. It appears Mr. Gallatin did not remain in Virginia more than two months. [Here Mr. Lewis read the law of Virginia of the 20th October, 1783.] On this law Mr. Lewis argued that Mr. Gallatin had not gone through the necessary qualifications to entitle him to citizenship there; and he observed that he admired the gentleman's candor in not insisting on it here. In this State he had certainly not qualified himself agreeably to the law. Under these circumstances Mr. Lewis, for his part, could never admit of the gentleman's right to citizenship so far back as to entitle him to the suffrage of a vote for a seat in the Senate, &c. The mischievous consequences of permitting such innovations he represented in strong terms; and he called to the recollection of the Senate the conduct of ancient and modern governments on this question. One of the ancient republics made it death for an alien to intermeddle in their politics. The sentiments of antiquity and those of men in mod- ern days proved the justice of these conclusions. With regard to the argiiments of the gentleman respecting his being entitled to be a citizen of the Union, or of any individual State of it, because he had qualified himself to be a citizen of one of them, Mr. Lewis said was a mere bubble, for surely the gentleman was not one of the mass of citizens at the accomplishment of independence. The doctrine of the old law, which the gentleman says was done away by the Eevolu- tion, in respect to aliens may have been so with regard to the British king; it was still, however, virtually in force against the gentleman. But, supposing it to be done away, how do the constitutions of the different States stand on this head ? Is it not implied by all of them that certain oaths, residence, and property make the requisites to form citizenship ? In Massachusetts a foreigner is not a citizen without he complies with those terms. [Here he quoted page 70 of the small volume of the laws of Massachusetts. He also cited the-act in favor of John Jarvis and others; also page 104 of the same book and pages 191 and 192. ] From these he maintained that no such wild idea was ever contem- plated by either the law of Massachusetts or Virginia as to admit foreigners or peraons from other States to citizenship immediately on their entrance within their limits. The situation of the Sitting member with respect to the constitution and laws of Pennsylvania he had little doubt was similar to what he had mentioned in regard to the other States, although he would not assert it as a fact. [He read the forty-second sec- tion and also in page 43 of the Law of Pennsylvania, 13th of March, 1789, a proviso which contains some precautions requiring records to be kept by the master of the rolls of the persons admitted to citizenship. ] The same principle pervades all the States as well as it does the Constitution of the United States. The absurdity of applying it in any other seiise was severely pictured by Mr. Lewis, and to admit the idea advanced by the sitting ALBEKT GALLATIN. 6] member was as inadmissible as it was novel. In support of what he wished to impress on the minds of the Senate Mr. Lewis quoted the first volume of the Journals of Congress in 1774 and 1775, pages 28 and 29. He then recurred to Blackstone, vol. 1, pages 63, 64, and 69; also 73 and 79. It was not his intention to quote the parliamentary laws of England in support of any- thing, but such parts of their common law as could be got over— that common law of England which was imported by our ancestors and handed down to them by the people, not the Parliament. The people had made the common law from time to time. The Saxons, Normans, &c., were all concerned in making and improving it until it had finally reached that degree of perfection in which it was given to us by our ancestors, and it was founded in wisdom and justice. Mr. Lewis next quoted first Blackstone, 402, which was one of the British laws that had never been admitted in this country and which he hoped never would, viz: That wherein the distinction is drawn between the commoner and the peer, an oath being required of the commoner upon all occasions, and no more than "upon my honor" from a peer, ex- cept in giving evidence in civil or criminal trials. Mr. Lewis concluded by saying that the difficulties which stood between Mr. Gallatin and his seat were insurmountable and could not be removed without showing a law of Massachusetts, Virginia, &c., repealing those laws in regard to the qualification of citi- zens which he had mentioned, but which repeal he was certain did not exist. He there- fore stated that to insist upon the gentleman's right to a seat was both novel and absurd. These were his opinions, which he had given in a perfectly extempore way, not having been allowed time nor expecting to meet the subject on the new ground which it had this day taken in the Senate. Mr. Gallatin said he would pledge himself to the Senate to prove that the grounds of his arguments and his construction of the confederation and laws of the States was neither novel nor absurd, except in Mr. Lewis's construction of them, but had been ad- mitted in many instances. However, as the common law of England was now intro- duced by Mr. Lewis, which was new ground to him, and as the hour of adjournment was nearly approaching; he would beg leave to make his reply to-morrow. On motion, the further consideration of this subject was postponed until to-morrow. 'PViJDJi.Y; FebrvMry 21, 1794. Agreeably to the order of the day, the Senate resumed the consideration of the report of the committee on the petition of Conrad Laub and others, respecting the election of Mr. Gallatin to be a Senator of the United States. Mr. Gallatin commenced his defense by laying down the principles on which he in- tended to argue. His was a very serious situation for a person to be placed in who had been so long in America and who -had mingled with the inhabitants in the common cause, that he should afterwards be called before so solemn a tribunal with an intention to wrest from him his right of citizenship. He confessed that on this occasion his feel- ings were deeply interested, particularly as the manner of the counsel for the prosecutors was so personal and went not only to deny him a seat in the Senate of the United States, but even to contest his citizenship and denounce him as being yet an alien. This was a matter of consequence to many thousands as well as himself who have long considered themselves in possession of all the privilege of denizens and yet may be de- prived of their rights if the doctrines of the counsel for the prosecutors should obtain any sanction from the body who were now to judge 6f its merits. Mr. Gallatin entered into a series of observations on the various points of law, &c., which had been adduced by Mr. Lewis, and he particularly remarked that the common law of England was entirely inapplicable to the subject under consideration. He read the laws of Virginia respecting naturalization, &c., from which he insisted that he had long since become a citizen of the United States. He also quoted first Blackstone, page 374, and Viner's Abridgment, Vol. II, page 266, respecting the difierent acceptations of den- izen and citizen, and he went back so far as the British statutes in 1740 to show the intention of the old government was to naturalize all persons who would go and reside in the Col- onies. He next mentioned the act of Pennsylvania of 31st of August, 1778, and com- mented oil the principles generally entertained by most writers on the subjects of alle- giance and citizenship — Blackstone, 266', &c. An alien is a man born out of the allegiance of the king. But allegiance in England is not an allegiance to the country pr to society as it is understood in this country. Iti order to explain the principle of reciprocity, he observed that when the two crowns of England and Scotland were united under James the inhabitants of Scotland became naturalized in England as if they had been natural-born subjects of that country. The allegiance in Britain was personal to the king, and it has there this remarkable quality that by the British laws allegiance can never be shaken off. Tlus country, before the Revolution, owed allegiance to the kiiig, but tbat was cle- 62 SENATE ELECTION CASES. stroyed by the Declaration of Independence, and then the inhabitant of tie States became mutually citizens of every State reciprocally; and they continued so until such time as the Slates made laws of their own afterwards respecting naturalization. As soon as separate governments existed allegiance was due to each, and here the al- legiance was a reality, it~was to the Government and to society, whereas in Britain it is merely fictitious, being only to one man. Every man who took an active part in the American Revolution was a citizen accord- ing to the great laws of reason and of nature, and when afterwards positive laws were made they were retrospective in regard to persons under this predicament; nor did those posterior laws invalidate the rights which they enjoy under the Confederation. Mr. Gallatin here mentioned his having been an inhabitant of Massachusetts before October, 1780, and he also observed that the law passed in that State was decisive against the common law of England. In quoting the laws of Massachusetts, which were passed in 1785 and afterwards, for naturalizing John Gardner and James Martin, he remarked that they clearly implied that even a natural-born subject who had not acted in the Eevolution and an absentee was not entitled to citizenship. He likewise took notice of the case of Mr. William Smith, of South Carolina, against whose election as a Representative in Congress a peti- tion was presented by Dr. Ramsey, although the decision of South Carolina on that sub- ject was exactly the reverse of Massachusetts. / In speaking of the difiieulties that occurred in explaining the terms citizen and alien he ran over a number of cases and asked whether if a person had arrived in tlie United States during the war, from Nova Scotia or elsewhere, and had taken an active part against the enemy, would he not be better entitled to the right of a citizen than even those who afterwards subscribed to the acts? The counsel for the prosecutors had ad- mitted that a person who had been one of the mass of the people at the Declaration of Independence was a citizen. On the same principle, until a law passes to disprove that a man who was active in the Eevolution previous to the treaty of peace was a citizen he must be one ipso facto: Mr. Gallatin next read a quotation from the first volume of Woodison, page 382, an English writer who acknowledged that all persons were aliens at the recognition of inde- pendence, and that is a more liberal construction than the counsel for the petitioners would admit of, for by his construction our sailors, &c., ought to be naturalized, lest they be alarmed by the British. The new Constitution of the United States requires certain qualifications for members of Congress, &c. , but it does not deprive persons of their rights who were actually citi- zens before this Constitution was ratified that made the States the United States. They were united by consent before, and consequently he was one of the people before the United States existed. He went on to read from the' constitution of Massachusetts and several other States sundry clauses in support of his reasoning, and recapitulated the several heads of Mr. Lewis's arguments, to each of which he replied. Mr. Gallatin said that Mr. Lewis was unfortunate in producing the law of Pennsyl- vania, for by proving too much he had proved nothing, for the forty-second section of the constitution is retrospective and by acknowledging the Articles of Confederation to be the supreme law of the land persons who were reciprocally citizens before are still left in full possession of the fight. So far from any dangerous consequences arising on my construction of citizenship, said he, I think it must be evident that there is more danger and absurdity in the counsel's own constructions. For in remarking on the policy of nations we find even slaves have been enfranchised by the great republics in times of common danger. The policy of America should be to make citizenship as easy as possible for the purpose of en- couraging population; even during the British dominion that was a principle laid down, and afterwards it was attempted to be varied ; it is made one of the principal subjects of complaint in the Declaration of Independence, where it is expressly said that the king endeavored to prevent the population of these States by having laws made to obstruct the naturalization of foreigners. If there was any dangerous consequences to be apprehended from the former regula- tions on this subject they are all remedied by the new Constitution. Therefore no ill consequence or absurdity can follow. The author of the Federalist supports this principle in Vol. II, page 51, for he says that it is a construction scarcely avoidable that citi-zens of each of the States are mutually so in all of them. . The first words in the Coustitution, "We, the people," furnished another argument in support ol Mr. Gallatin's principles, which he turned to great advantage, still draw- ing an inference to show that Mr. Lewis's construction of the subject was most liable to difficulties and to giischievous consequences. He concluded by observing that if there was any disfranchising clauses in the Consti- ALBERT GALLATIN. 63 tution of the United States tending to deprive citizens of antecedent rights, all such clauses must be construed favorably, and vfere evidently on his side. With regard to a sentence that had been added by the advice of counsel to the affidavit of Pelatiah Webster, he made some remarks which tended to establish his own personal character, which he trusted would be found, when traced back to his nativity, to stand the test; and that his right to a seat in the Senate would also stand upon an equally just foundation. Mr. Lewis denied ever having seen the afidavit of Mr. Webster until it was shown him . at the time the examination before the committee was going forward. Mr. Gallatin recriminated that the clause of which he took notice was not in the affi- davit when Mr. Webster brought it to the committee, and that he had permitted it to be added with great reluctance. It was only the recital of a few words which passed be- tween Mr. Gallatin and Mr. Webster in jest some years since, wherein Mr. Gallatin had ironically said his name was Sidney, probably alluding to some essays that had appeared in the newspapers under that signature which have been generally attributed to the pen of another gentleman in this State. Mr. Jackson, in order to bring the merits of the subject directly before the Senate, said he would move a resolution that would have that efi'ect; but upon Mr. Lewis's ob- serving that he had not yet closed his arguments, and at the instance of Mr. Butler, from South Carolina, who said he would second Mr. Jackson's motion hereafter, it was with- drawn for the present. Ordered, That the further consideration thereof be postponed until to-morrow. Satueday, February 23, 1794. The Senate resumed the consideration of the report of the committee on the petition f.f Conrad Laub and others, respecting the election of Mr. Gallatin to be a Senator of the United States. The greater part of the day was taken up by Mr. Lewis's pleadings, wherein he en- tered into a very extensive field of reasoning, and quoted a great number of authorities in support of the principles on which he had set out last Thursday, and to prove that in the true sense of the Constitution of the United States, as well as of that of the State of Pennsylvania, Mr. Gallatin was not duly qualified for the office of a Senator, and therefore he trusted that the honorable Senate, upon mature refiectioa, would vacate his seat. Mr. Gallatin closed his defense in a short speech, wherein he quoted Vattel, page 167, and explained the forty-second section of the constitution of Pennsylvania, the liberal con- struction of which, he said, was in his favor, and the construction contended for by the counsel absurd. He finished by reading a, passage from Lord Bacon's works to show that where there is any doubt in the laws it "should operate in favor of the defendant, and he accordingly made no doubt but that the Senate would validate his election. Ordered, That the further consideration of the subject be postponed until Monday next. A motion was made as follows: " Besolved, That Albert Gallatin, returned to this House as a member for the State of Pennsylvania, is duly qualified for, and elected to, a seat in the Senate of the United States." Ordered, That the consideration of this motion be postponed until Monday next, and that a number of copies of the fourth article of the First Confederation of United States be printed for the use of the Senate. Monday, February 24, 1794. The Senate resumed the consideration of the motion made the 22d instant, on the re- port of the committee on the petition of Conrad Laub and others, respecting the election of Mr. Gallatin to be a Senator of the United States ; and, After progress. Ordered, That the further consideration thereof be postponed until to-morrow. Tuesday, February 25, J794. , The Senate resumed the consideration of the motion made the 22d instant, on the report of the committee on the petition of Conrad LaulD and others, respecting the elec- tion of Mr. Gallatin to be a Senator* of the United States; and. After progress. Ordered, That the further consideration thereof be postponed until to-morrow. Wednesday, February 26, 1794. The Senate resumed the consideration of the motion made the 22d instant, on the report of the committee on the petition of Conrad Laub and others, respecting the elec- tion of Mr. Gallatin to be a Senator of the United States; and. After progress, Ordered, That the further consideration thereof be postponed until to-morrow. 64 SENATE ELECTION CASES. ThuesdAY, February 27,' 1794. The Senate resumed the consideration of the motion, made the 22d instant, on the report of the committee on the petition of Conrad Laub and others, respecting the elec- tion of Mr. Gallatin to be a Senator of the United States; and, After progress, Ordered, That the further consideration thereof be postponed until to-morrow. Friday, February 28, 1794. The Senate resumed the consideration of the 22d instant, on the report of the com- mittee on the petition of Conrad Laub and others, respecting the election of Mr. Gallatin to be a Senator of the United States, and, On the question to agree to the motion, as follows: "Resolved, That Albert Gallatin, returned to this House as a member for the State of Pennsylvania, is duly qualified for, and elected to, a seat in the Senate of the United States," It passed in the negative — yeas 12, nays 14; as follows: Yeas— Messrs. Bradley, Brown, Burr, Butler, Edwards, Gunn, Jackson, Langdon, Martin, Monroe, Eobinson, and Taylor. Nays— Messrs. Bradford, Cabot, Ellsworth, Foster, Frelinghuysen, Hawkins, Izard, King, Livermore, Mitchell, Morris, Potts, Strong, and Vining. On motion that it be Resolved, That the election of Albert Gallatin to be a Senator of the United States was void, he not having been a citizen of the United States the term of years required as a qualification to be a Senator of the United States, A motion was made to divide the question at the word "void;" and On motion to agree to the first paragraph of the motion so divided, it passed in the affirmative — yeas 14, nays 12; as follows: Yeas — Messrs. Bradford, Cabot, Ellsworth, Foster, Frelinghuysen, Hawkins, Izard, King, Livermore, Mitchell, Morris, Potts, Strong, and Vining. NAYS-i-Messr3. Bradley, Brown, Burr, Butler, Edwards, Gunn, Jackson, Langdon, Martin, Monroe, Eobinson, and Taylor. On motion to adopt the resolution, as follows: "Resolved, That the election of Albert Gallatin to be a Senator of the United States was void, he not having been a citizen of the United States the term of years required as a qualification to be a Senator of the United States," It passed in the affirmative^yeas 14, nays 12; as follows: Yeas — Messrs. Bradford, Cabot, Ellsworth, Foster, Frelinghuysen, Hawkins, Izard, King, Livermore, Mitchell, Morris, Potts, Strong, and Vining. Ways — Messrs. Bradley, Brown, Burr, Butler, Edwards, Gunn, Jackson, Langdon, Martin, Monroe, Eobinson, and Taylor. Resolved, That an attested copy of the resolution of the Senate, declaring, the election of Albert Gallatin to be void, be transmitted by the President of the Senate to the ex- ecutive of the Commonwealth of Pennsylvania. EEPOET OF COMMITTEE ON ELECTIONS. [This committee consisted of Messrs. Bradley, Ellsworth, Mitchell, Eutherford, Brown, Livermore, and Taylor.] The report of the committee on the petition of Conrad Laub and others, above referred to, a,nd made on the 10th instant, is as follows: The Committee of Elections, to whom was referred the petition of Conrad Laub and others, against the election of thie Hon. Albert Gallatin as a Senator of the United States for the State of Pennsylvania, report: That they have had the same under consideration, and, having given due notice, as well the petitioners, by their agent, Michael Schmyser, as the said Mr. Gallatin ap- peared before them, and, ou the part of the petitioners, the following evidence was pro- duced, to wit: Eobert Morris, esq., being duly sworn, deposeth: "That during the war two of his soi^s went to Geneva for their education, and that at that place they became acquainted with some of the friends of Mr. Albert Gallatin, who had gone for America, and they being solicitous to hear of his safety, desired Mr. Morris's sons to write to their father to make inquiry and give the information he should obtain. That frequently afterwards he received letters for Mr. Gallatin from Europe, which he always supposed to come from thefriendsofMr. Gallatin in Geneva. He supplied Mr. Gallatin withmoneyforabillupon London, and there supposed the funds to pay the same were remitted from Geneva. Mr. Morris paid Mr. Gallatin about one thousand guineas, by order of Messrs. ^ Co., bankers in Paris, believing always that they were reimbursed from Geneva. Mr. ALBERT GALLATIN. 65 Morris does not recollect dates, not having for a long while seen any of the letters that passed on the subject ; he does not know the place of Mr. Gallatin's nativity, but from the general course of the circumstances which came under his observation he always did suppose he was born in Geneva. ' Sworn to and subscribed, January 22, 1794." Nathaniel Cabot Higginson, esq. , being duly sworn, deposeth : ' ' That he does not know directly anything of Mr. Gallatin's being a foreigner or native; that he recollects know- ing him by reputation and sight at Boston, in one of the years 1781, 1782, or 1783, and that he was generally reputed to be a foreigner. This deponent believes that Mr. Galla- tin then taught the French language, and did not speak the English with facility; and further recollects that Mr. GaUatin was resident there or thereabouts a considerable time. This deponent further says that he never had any conversation vnth Mr. Galla- tin, but founds his belief with respect to.Mr. Gallatin's not speaking the English with facility on the information received from others. "Sworn to and subscribed, January 22, 1794." Mr. John BreakbUl, being duly sworn, testifies : "That last winter, being a member of the legislature of Pennsylvania, previous to the election of Senator for the State of Pennsylvania, I heard Mr. Gallatin say his citizenship would not admit his being a Senator; what were his reasons for making the declaration I cannot say; I took it he did not wish to be elected. 'This declaration by Mr. Gallatin was made at a meeting of a number of members of the Pennsylvania legislature, held for the purpose of agreeing who should be set up as a candidate. The deponent further says he does not recollect Mr. Gallatin's assigning any other reason for his backwardness toserve as a Senator than the want of citizenship. " Sworn to and subscribed, January 22, 1794." Henry Kammerer, esq., being dulysworn, testifies: "That last winter, being a mem- ber of the legislature of Pennsylvania, and previous to the, election of Senator for the said State, at a meeting of a number of the members of the State legislature to agree upon a candidate to fill said office, I heard Mr. Gallatin say when his name was proposed, 'As for my name, it is out of the question; I have not been a citizen long enough to en- title me to serve in that station. ' .That at a second meeting for the same purpose Mr. Gallatin was again proposed as a proper person for a candidate, and then tW deponent understood (not from Mr. Gallatin, but from some of the members of assembly then present) that the doubt about his citizenship was then put to rights; and then it was almost unanimously agreed to put up Mr. Gallatin's name. That on the morning suc- ceeding Mr. Gallatin's election the deponent heard it observed that notwithstandipg Mr. Gallatiu's election he could not take his seat, in consequence of his declaration that he had not been long enough a citizen. That he the same day mentioned this to Mr. Galla- tin, who said that he had made this declaration under a mistaken idea that it was neces- sary for him to have been nine years a citizen of Pennsylvania, but that upon examining the Constitution he had found that to have been nine years a citizen of the United States was sufficient, and that he had been above nine years a citizen of the United States, or words to that eflTect. "Sworn to and subscribed, January 22, 1794." Pelatiah Webster, being duly qualified, testifies: ' ' That eleven years ago last summer I let my house in Philadelphia to Mary Linn, who proposed to take lodgers; I reserved apartments for myself and boarded with her. Soon after Mr. Savery and Mr. Gallatin took lodgings of her and continued a number of months there. Mr. Savery spoke no English; Mr. Gallatin spoke good English and served as interpreter for him, They appeared to be well-bred gentlemen, and their conduct was agreeable and conciliating, and they soon gained the esteem and respect of the family. I do not know that they ever declared their country, but we all supposed they were French, and of course the people, customs, and countey of France often "made the topic of fireside chat. In one of . these transient conversations Mr. Gallatin took occasion to say that his knowledge of French affairs was not very perfect, for he was not a native of France, nor had ever re- sided long in that country, but was from Geneva. No one interesting circumstance made any further inquiry necessary, nor do I recollect that he made any more explication of the subject. "N. B. Mr. Gallatin once said that his original name was not Gallatin, but I think he said it was Sidney, but this conversation was in drollery, and not in earnest, as I con- ceived at the time of speaking from the manner and air of his speaking thereon. ' ' Sworn to and subscribed, January- 28, 1794. " Mr. John Smilie, member of the House of Eepresentatives of the United States, being sworn, saith : ' ' That at a meeting of suudiry members of the legislature of Pennsylvania, previous to Mr. Gallatin's election as a Senator of the United States, that gentleman was mentioned as a proper person to fill the said office; at which time Mr. Gallatin started S B 5 66 SENATE ELECTION CASES. some doubt respecting his being qualified, but in what words the deponent does not "That the deponent did not understand upon what the doubt was founded, though he thinks from something said by Mr. Gallatin that it related to Mr. Gallatm's citizenship, for, as the deponent conceived, the conversation proceeded from that kind ot inoaesty which gentlemen usually feel upon having their names proposed upon such occasions, he did not pay much attention to it, and that his reason for forming this opinion was his having frequently observed gentlemen to make excuses in similar situations, and Irom his knowledge of Ui. Gallatin's modesty of disposition. When being asked whether he ever heard Mr. Gallatin say that he had not been a citizen of the United States nuie years previous to his election, the deponent replies he never did. Upon being asked by Mr. Lewis, counsel for the petitioners, what he had ever heard Mr. Gallatin say touching his citizenship, the deponent repUes that a considerable time subsequent to Mr. Gallatin s election Mr. Gallatin, in conversations vrith the deponent, expressed an opinion that he was qualified with respect to citizenship. ^ What else did you ever hear Mr. Gallatin say with respect to his citizenship? The deponent answers that he recollects having heard him say something with respect to the laws of Massachusetts not requiring an oath of alle- giance at the time of his giving his opinion as aforesaid. Did you ever hear Mr. Gallatin say he was born in Europe? The deponent replies that he does not recollect Mr. Galla- tin's saying that he was bom in Europe, but that he has heard Mr. Gallatin speak of himself as a Genevan, mention his family in Geneva, and in conversations with him hath always understood him to be of Geneva. Did you ever hear Mr. Gallatin mention the time of his coming into America? He replies that he thinks Mr. Gallatin, about a year past, mentions that he had been then thirteen years in this country, and that he was nineteen years old when he came. Did you ever hear Mr. Gallatin say when or where he took the oath'of allegiance ? He replies he heard Mr. Gallatin say that he took the oath of allegiance in Virginia, but as to the time the deponent cannot be precise, but he thinks, if he can recollect, that Mr. Gallatin did mention to him, though he cannot be certain; but i t was not nine years before he was elected. Thatthe deponent thinks Mr. Gallatin's doubts respecting his citizenship were founded on this ground, the witness referring in this part of hia testimony to the meeting before mentioned, when these doubts were ex- pressed; but he cannot specify the time of Mr. Gallatin's having mentioned to him the circumstance of his having taken the oath of allegiance. "Sworn to and subscribed, January 28, 1794." Mr. Thomas Stokely, being sworn, deposeth and saith : ' ' That some few days before a Senator was chosen for the State of Pennsylvania a meeting was had to fix on a proper person to represent the State in that of&ce; sundry persons were started as candidates, among whom was Mr. Gallatin, who, upon his being named, observed that there were many other persons more proper to fill that office;' and also observed that there might be doubts as to his citizenship, though the deponent, from the length of time, and not ex- pecting to have been called upon, retains too slight an impression of what then passed to be able to recollect the words with precision. That at a subsequent meeting for the same purpose Mr. Gallatin was finally agreed to be nominated, and the deponent heard no objection stated thereto, either by Mr. Gallatin (who was present) or any other person. "Sworn to and subscribed, February 1, 1794." The before-recited evidence being introduced and closed on the part of the petition- ers, Mr. Gallatin was asked whether he had any testimony to produce on his part, to which he gave the following answer in vrriting, to wit: " The committee to whom the petition of Conrad Laub, &c., was referred, having in- formed me that the petitioners had closed their evidence, and asked me ' whether I had any testimony to produce on my side,' I answer that it appear%,to me that there is not sufficient matter charged in the petition and proved by the testimony to vacate my seat; that by the resolution appointing the committee the petition is referred to them to state the facts, ' without prejudice as to any questions which may, upon the hearing, be raised by the sitting member as to the sufficiency of the parties and the matter charged in the petition; ' that upon the hearing, and in the present stage of the same, the ques- tion as to the sufficiency of matter, as above stated, is raised by me; that I conceive from the evident construction of the resolution I have a right to have that question decided by the Senate; that until the same shall have been decided I do not wish to be at the trouble and expenseof collecting evidence at a great distance; and therefore that at pres- ent I do not mean to produce any testimony, reserving, however, to myself the right which I conceive I have to produce any testimony in my favor after the said question shall have been decided by the Senate, in case it is decided against me. "ALBERT GALLATIN." Which being duly read and considered, the committee came to the following resolu- tion, to wit: " Whereas the evidence on the part of the petitipners having been closed, and it ap- pearing that Mr. Gallatin was an alien in the year 1780, and his answer in writing as- ALBERT GALLATIN. 67 signing reasons why he. should not adduce evidence on his part in the present stage of the inquiry not being, in the opinion of the committee, sufficient, "Besolved, That in the opinion of the committee it is now incumbent on Mr. Gallatin to show that. he has become a citizen of the United States, and when." Which resolution being read to Mr. Gallatin, he informed the committee he should rely on the answi.T he had before given. All which is respectfully submitted to the honorable Senate by the committee. And subjoined is the statement of facts exhibited by Mr. Gallatin and agreed to be- tween him and the counsel for the petitioners, as. mentioned the 20th instant: ' 'Albert Gallatin was born at Geneva on the 29th day of January, 1761. He left that place for the United States in April or May, 1780; arrived in Boston, Mass., on the 14th or 15th of July of the same year, and has ever since resided within the United States. In October, 1780, he removed from Boston to Machias, in the Province of Maine, in which place and its neighborhood he resided one year, and commenced a settlement on a tract of vacant land. Daring that time he furnished out of his own funds supplies amounting in value to more than sixty pounds Massachusetts currency to Col. John Allen, who was the commanding oificer stationed there, and also superintendent of Indian affairs for the Eastern department, for the use of the American troops, and on several occasions acted as a volunteer vmder the same officer's command. For the said supplies he re- ceived one year after a warrant on the treasury of the State of Massachusetts, which he sold at a considerable depreciation. In October, 1781, be returned to Boston, and in the spring of 1782 was, by a vote of the corporation of the University of Cambridge, other- wise called Harvard College, chosen instructor of the French language of the said uni- versity. By the same vote he was allowed a room in the college, the privilege of the commons at the tutor's table, the use of the library, and also the right of having his pay, which depended on the voluntary subscription and attendance of the students, collected by the steward of the institution, together with the other charges against the students for board and education. Those terms he accepted and remained in that station for the term of one year. In July, 1783, he removed to Pennsylvania, and in November of the same year proceeded to Virginia, in which State he had purchased more than one thou- sand acres of land, and amounting to more than one hundred pounds Virginia currency in value, some time between July and November, 1783. Between this last-mentioned period and the month of October, 1785, he purchased other lands in the said State to a very large amount, and in the said last^mentioned month he took an oath of allegiance to the said State. In December,' 1785, he purchased the plantation in Fayette County, in Pennsylvania, on which he has lived ever since. In October, 1789, he was elected member of the convention to amend the constitution of Pennsylvania, and in October, 1790, 1791, and 1792, he was elected member of the legislature of the same State. On the 28th of February, 1793, he was chosen. Senator to represent the said State in the Senate of the United States, and took his seat in December following." fi8 SENATE ELECTION CASES. [Fourth Congress — ^First session.] HUMPHEEY MAESHALL, Senator from Kentuchy from March, 4, 1795, to March 4, 1801. In February, 1796, the Vice-President laid before the Senate a letter from the governor of Ken- tucky and a memorial from the Representatives of said State, which memorial stated that in Feb- ruary, 1795, a pamphlet was published by George Muter and Benjamin Sebastian (two judges of the court of appeals), in which they said that Humphrey Marshall had had a suit in chancery in said court of appeals, in which, it appearing manifest from the records and documents that he had committed a gross fraud, the court had given a decree against him ; and that in the course of the investigation he had been publicly charged with perjury. The memorial further stated that the said representatives did not mean to give an opinion on the justice of the said charge, but I'equested that an investigation relative thereto might take place. Mr. Marshall "was also solicitous that an investigation of the subject should take place in the Seriate. It was determined that the memorial could not be sustained; also that as the Constitution does not give-jurisdiction to the Senate the consent of the party cannot give it, and that therefore the said memorial ought to be dismissed. Tne history of the case here given consists of a transcript of the proceedings of the Senate relat- ing to It from the Annals of Congress, 4th Cong. , 1st sess. , 1795-'96, within pages 47-59. Feiday, February 26, 1796. The Vice-President laid before the Senate a letter from the governor of the State of Eentocky, with divers papers accompanying the same. The letter and papers therein referred to were read, and ordered to lie ou the tahle. Monday, February 29, 1796. On motion hy Mr. Marshall, ' ' That the letter from the governor of the State of Kentucky, vpith divers papers ac- companying the same, communicated to the Senate ou the 26th instant, be referred to a committee." It was agreed to postpone the consideration of the motion until to-morrow. Wednesday, March 2, 1796. The Senate resumed the consideration of the motion made on the 29th of February respecting the letter and papers from the governor of the State of Kentucky; and Ordered, That they be referred to Messrs. Livermore, Ross, King, Rutherfurd, and Strong to consider and report thereon to the Senate. Feiday, March. 11, 1796. Mr. Livermore reported from the committee to whom was referred the letter of the governor and the memorial of the representatives of the State of Kentucky, with the papers accompanying them; and the report was read, and ordered to lie on the table. Tuesday, March 15, 1796. The Senate resumed the consideration of the report of the committee to whom was referred the letter of the governor and the memorial of the representatives of the State of Kentucky, vrith the papers accompanying them; and, After debate, the Senate adjourned. Wednesday, March 16, 1796. Ordered, That the consideration of the report of the committee to whom was referred the letter of the governor and the memorial of the representatives of the State of Ken- tucky, with the papers accompanying them, be further postponed. Thursday, March 17, 1796. The Senate resumed the consideration of the report of the committee to whom was re- ferred the letter from the governor and the memorial of the Representatives of the State ot Kentucky, with the papers accompanying them, which is as follows: EEPOET OP COMMITTEE. [The committee consisted of Messrs. Livermore, Ross, King, Rutherford, and Strong.] That the representatives of the freemen of Kentucky state in their memorial that in February, 1795, a pamphlet was published by George Muter and Benjamin Sebastian (who were two judges of the court of appeals), in which they say that Humphrey Mar- shall had a suit m chancery in the said court of appeals, in which it appearing manifest HUMPHREY IJAESHALL. 69 from the oatli of the complaiaaiit, from disinterested testimony, from records, from doc- uments furnished by himself, and from the contradictions contained in his own answer, that he had committed a gross fraud, the court gave a decree against him; and that in the course of the investigation he was publicly charged with perjury. That Mr. -Mar- shall, in a publication in the Kentucky Gazette, called for a specification of the charge; to which the said George Muter and Benjamin Sebastian, in a like publication, replied that he was guilty of perjury in his answer to the bill in chancery exhibited against hiin by James Wilkinson, and that they would plead justification to any suit brought against them therefor. That no such suits, as the said representatives could learn, had been brought. The said representatives further say that they do not mean to give ai| opinion on the justice of the said charge, but request that an investigation may imme- diately take place relative thereto. Your committee observe that the said suit was tried eighteen months before Mr. Marshall was chosen a member of the Senate, and that previous to his election mutual accusations had taken place between him and the judges of the said court relating to the same suit. The representatives of Kentucky have not furnished any copy of Mr. Marshall's an- swer on oath, nor have they stated any part of the testimony, or produced any of the said records or documents, or the copy of any paper in the cause, nor have they intimated a design to bring forward those or any other proofs. Your committee are informed by the other Senator and' two Eepresentatives in Con- gress from Kentucky that they have not been requested by the legislature of that State to prosecute this inquiry, and that they are not possessed of any evidence in the case, and that they believe no person is authorized to appear in behalf of the legislature. Mr. Marshall is solicitous that a full investigation of the subject should take place in the Senate, and urges the principle that consent takes away error, as applying on this occasion, to give the Senate jurisdiction; but, as no person appears to prosecute, and there is no evidence adduced to the Senate, nor even a specific charge, the committee think any further inquiry by the Senate would be improper. If there were no objec- tions of this sort, the committee would still be of opinion that the memorial could not be sustained. They think that in a CEise of this kind no person can be held to an- swer for an infamous crime unless on a presentment or indictment of a grand jury, and that in all such prosecutions the accused ought to be tried by an impartial jury of the State and district wherein the crime shall have been committed. If, in the present case, the party has been guilty in the manner suggested, no reason has been alleged by the memorialists why he has not long since been tried in the State and district where he . committed the offense. Until he is legally convicted, the principles of the Constitution and of the common law concur in presuming that he is innocent. And the committee are compelled, by a sense of justice, to declare that in their opinion this presumption in favor of Mr. Marshall is not diminished by the recriminating publications of two men, who take no pains to conceal their personal resentment against him. Whatever motives induced the legislature of Kentucky to call the attention of the Senate to the above-mentioned publications, the committee are of opinion that as the Constitution does not give jurisdiction to the Senate the consent of the party cannot give it, and that therefore the said memorial ought to be dismissed. On motion to postpone the consideration of the report until to-morrow, it passed in the negative; and. After debate, on motion to reconsider the question for postponement, it passed in the negative. On motion to expunge all the words from "if in the present case," inclusive, to the end of the report, a motion was made to amend the part proposed to be struck out by expunging these words: "of two men who take no pains to conceal their personal re- sentment," and it was agreed that this motion was not in order. A motion was made to divide the original motion for striking out, and retain the words from "if in the present case," inclusive, to the word, "innocent," at the end of the first paragraph; and. After debate, the Senate adjourned. Fbiday, March 18, 1796. The Senate resumed the consideration of the report ol the committee to whom was referred the letter from the governor and the memorial of the representatives of the State of Kentucky, with the papers accompanying them, together with the motion made thereon, and under debate yesterday; and a motion was made to amend the motion by expunging from the report all that follows the words, "the memorial could not be sus- tained;" and. After debate, the Senate adjourned. Satueday, March 19, 1796. The Senate resumed ttie consideration of the report of the committee to whom was 70 SENATE ELECTION CASES. refetred the letter ftom the governor and the memorial of the representatires of th« State of Kentucky, -with the papers accompanying -them; also the motion made thereon and under debate yesterday, together with the motion for amendment by expunging from the report all that follows the words, "the memorial could not be sustained;" and a motion was made to postpone the report and the motions made thereon, and to take into consideration the following resolution: "Whereas the honorable the legislature of the State of Kentucky have, by their me- niorial transmitted by the governor of said State, informed the Senate that Humphrey Marshall, a Senator from the said State, had been publicly charged with the crime Of perjury, and requested that an inquiry might be thereupon instituted, in which request the said Humphrey Marshall has united; and it being highly interesting, as well to the honor of the said State as to that of the Senate, and an act of justice due to the charac- ter of the said Humphrey Marshall that such inquiry should be had: Therefore, "Besalved, That the Senate will proceed to the examination of the said charge on the day of the next session of Congress; that in the opinion of the Senate a convic- tion or acquittal in the ordinary courts of justice of the said State would be the most satisfactory evidence on this occasion ; but that if this should not be attainable by reason of any act of limitation or other legal impediment, such other evidence will be received as the nature of the case may admit and require. "Resolved, That the Vic^-President be requested to transmit a copy of the foregoing resolution to the governor of the said State." After debate, the Senate adjourned. Monday, March 21, 1796. The Senate resumed the consideration of the motion, made on the 19th instant, topost- pone the report of the committee to whom was referred the letter from the governor and the memorial of the representatives of the State of Kentucky, with the papers ac- companying them, together with the motions of amendment made thereon, in order to consider the following resolution: "Whereas the honorable legislature of the State of Kentucky have, by their memo- rial, transinitted by the governor of the said State, informed the Senate that Humphrey Marshall, a Senator from the said State, had been publicly charged with the crime of perjury, and requested that an inquiry might be thereupon instituted, in which request the said Humphrey Marshall has united; and it being highly interesting, as well to the honor of the said State as to that of the Senate, and an act of justice due to the charac- ter of the said Humphrey Marshall that such inquiry should be had: Therefore, " Beaolved, That the Senate will proceed to the examination of the said charge on the ^ day of the next session of Congress; that, in the opinion of the Senate, a con- viction or acquittal in the ordinary courts of j ustice of the said State would be the most satisfactory evidence on this occasion ; but th;it, if this should not be attainable, by reason of any act of limitation or other legal impediment, such other evidence will be received as the nature of the case may admit and require. ' ' Resolved, That the Vice-President be requested to transmit a copy of the foregoing resolution to the governor of the said^ State." And on the question for postponement, it passed in the negative — yeas 7, nays 17; as follows: ' Yeas — Messrs. Bloodworth, Brown, Burr, Langdon, Mason, Eobinson, and Tazewell. Nays— Messrs. Bingham, Bradford, Cabot, Foster, Frelinghuysen, Gunn, Henry, Latimer, Livermore, Martin, Paine, Read, Eoss, Rutherfurd, Strong, Trumbull, and Vining. / Tuesday, March 22, 1796. The Senate resumed the consideration of the report of the committep to whom was referred the letter from the governor and the memorial of the representatives of the State of Kentucky, with the papers accompanying them. On the question to expunge these words: "if there were no objections of this sort, the committee would still be of opinion that the memorial could not be sustained," it passed in the negative. On the question to exptinge the following words: " They think that in a case of this kind no person can be held to answer for an infa- mous crime unless on a presentment or indictment of a grand jury, and that in all such prosecutions the accused ought to be -tried by an impartial jury of the State and district wherein the crime shall have been committed. If in the present case the party has been guilty in the manner suggested, no reason has been alleged why he has not long since been tried in the State and district where he committed the offense. Until he is legally convicted, the principles of the Constitution and of the common law concur in presum- ing that he is innocent ' ' — It passed in the negative. On motion, itwas agreed to amend the next paragraph to read as follows: "And the committee are compelled by a sense of justice to declare that in their opin- HUMPHREY MARSHAIiL. 71 ion thlfl presumption in fevor of Mr. Marshall is not diminished by recriminating publi- cations, which manifest strong resentment against him. ' ' And on the question to expunge the x>aragraph as amended, it passed in the negative. On motion, it was agreed to amend the last clause of the report to read as follows: "And they are also of opinion that as the Constitution does not give jurisdiction to the Senate the consent of the party cannot give it; and that therefore the said memo- rial ought to be dismissed." On motion to expunge the clause last agreed to be amended, it passed in the negative — yeas 7, nays 16; as follows: Yeas — ^Messrs. Bloodworth, Burr, Langdon, Martin, Mason, Robinson, and Tazewell. , Nays — Messrs. Bingham, Bradford, Cabot, Foster, Frelinghuysen, Gunn, Henry, Lat- imer, Livermore, Paine, Read, Ross, Rutherfurd, Strong, Trumbull, and Vining. Mr. Brown requested and was excused fiom voting on the question. On motion, it was agreed to amend the last paragraph but two of the report, begin- ning with the words " if in the present case, ' ' bjr inserting the words ' ' by the memori- alists" after the word "alleged." On the question to adopt the report as amended, it passed in the affirmative — ^yeas 16, nays 8; as follows: Yeas — Messrs. Bingham, Bradford, Cabot, Foster, Frelinghuysen, Gunn, Henry, Lat- imer, Livermore, Paine, Read, Ross, Rutherfurd, Strong, Trumbull, and Vining. Nays — Messrs. Bloodworth, Brown, Burr, Langdon, Martin, Mason, Robinson, and Tazewell. So the report was adopted, as follows: EEPOET as adopted. The committee to whom was referred the letter of the governor and the memorial of the representatives of Kentucky, with the papers accompanying them, report: That the representatives of the freemen of Kentucky state in their memorial that in February, 1795, a pamphlet was published by George Muter and Benjamin Sebastian (who were two judges of the court of appeals), in which they say that Humphrey Mar- shall had a suit in chancery in the said court of appeals, in which it appearing manifest from the oath of the complainant, from disinterested testimony, from records, from doc- uments furnished by himself, and from the contradictions contained in his own answer, that he had committed a gross fraud, the court gave a decree against him; and that in the course of the investigation he was publicly charged with peijury. That Mr. Mar- shall, in a publication in the Kentucky Gazette, called for a specification of the charge; to which the said George Muter and Benjamin Sebastian, in a like publication, replied that he was guilty of perjury in his answerto the bill in chancery exhibited against him by James Wilkinson, and that they would plead j ustification to any suit brought against them therefor. That no such suit, as the said representatives could learn, had been brought. The said representatives further say that they do not mean to give an opinion on the justice of the said charge, but request that an investigation may immediately take place relative thereto. Your committee observe that the said suit was tried eighteen months before Mr. Marshall was chosen a member of the Senate, and that previous to his election mutual accusations had taken place between him and the judges of the said court relating to the same suit. The representatives of Kentucky have not furnished any copy of Mr. Marshall's an- swer on oath, nor have they stated any part of the testimony, or produced any of the said records or documents, or the copy of any paper in the cause, nor have they inti- mated a design to bring forward those or any other proofs. Your committee are informed by the other Senator and the two Representatives in Congress from Kentucky that they have not been requested by the legislature of that State to prosecute this inquiry, and that they are not possessed of any evidence in the case, and that they believe no person is authorized to appear on behalf of the legislature. Mr. Marshall is solicitous that a full investigation of the subject shall take place in the Senate, and urges the principle that consent takes away error, as applying, on this occasion, to give the Senate jurisdiction; but, as no person appears to prosecute, and there is no evidence adduced to the Senate, nor even a specific charge, the committee think any further inquiry by the Senate would be improper. If there were no objec- ' tions of this sort, the committee would still be of opinion that the memorial could not be sustained. They think that in a case of this kind no person can be held to answer for an infamous crime unless on a presentment or indictment of a grand jury, and that in all such prrosecutions the accused ought to be tried by an impartial jury of the State and district wherein the crime shall have been committed. If, in the present case, the party has been guilty in the manner suggested, no reason ha's been alleged by the me- morialists why he has not long since been tried in the State and district where he com- 72 SENATE ELECTION CASES. mitted the offense. Until he is legally convieted, the principles of the Constitution and of the common law concur in presuming that he is innocent. And the committee are compelled, by a sense of justice, to declare that in their opinion the presuiiiption in favor of Mr. Marshall is not diminished by the recriminating publications, which mani- fest strong resentment against him. And they are also of opinion that as the Constitution does not give jurisdiction to the Senate the consent of the party cannot give it; and that therefore the said memo- rial ought to be dismissed. Resolved, That the Vice-President of the United States be requested to transmit a copy of the foregoing report to the governor of Kentucky. BLOUNT AND COCKE. 73 [Fourth Congress — First session.! WILLIAM BLOUNT and WILLIAM COCKE, of Tennessee. The history of the case as here given consists of a transcript of the proceedings of the Senate relating to it from the Annals of Congress, 4th Cong., 1st sees., vol. 1, 1795-'96,and found within pages 83-122. The case simply shows that Messrs. Blount and Cocke were not admitted to seats in the Senate on papers presented to the Senate May 9, 1796, and purporting to be credentials of being duly elected Senators from the State of Tennessee. It does not show why they were not admitted. There is, however, an allusion to a pending "biU proposing to admit the Southwestern Territory Into the Union," which bill was not approved until June 1, 1796. Prom this it may be inferred that Messrs. Blount and Cocke were not admitted to their seats because the papers purporting to be their credentials of election were of earlier date than that of the admission of Tennessee into the Union. Mr. Blount and Mr. Cocke were again elected August 2, 1790, by the legislature of Tennes- see, after its admission as a State, and took their seats in the Senate December 6, 1796. Monday, May 9, 1796. On motion that a paper purporting^ to be the appointment of William Blount and William Cocke, respectively, to seats.in the Senate, should be read, it was agreed that the mQtion be postponed till to-morrow. Tuesday, May 10, 1796. Ordered, That the consideration of the paper, purporting to be the appointment of William Blount and William Cocke to a seat in the Senate, respectively, be postponed until Friday next. ' Satueday, May 21, 1796. A letter, signed William Cocke, purporting that he is appointed a Senator for the State of Tennessee, and claiming a seat in fhe Senate, was presented and.read. Ordered, That it lie on the table. Monday, May 23, 1796. A letter, signed William Blount and William Cocke, was read, stating that they have been duly and legally elected Senators to represent the State of Tennessee in the Senate. On motion, "That Mr. Blount and Mr. Cocke, who claim to be Senators of the United States, be received as spectators, and that chairs be provided for that purpose until the final decis- ion of the Senate shall be given on the bill proposing to admit the Southwestern Terri- tory into the Union," A motion was made to refer the consideration thereof to a committee; and it passed in the negative. On motion to agree to the original motion, it passed in the affirmative — yeas 12, nays 11; as follows: Yeas — Messrs. Bloodworth, Brown, Burr, Butler, Foster, Henry, Langdon, Martin, Potts, Eobinson, Tattnall, and Tazewell. Nays — Messrs. Bingham, Bradford, Guun, Latimer, Livermore, Marshall, Eead, Boss, Eutherfurd, Strong, and Trumbull. Wednesday, June 1, 1796. On motion by Mr. Martin that it be ^'Resolved, That the Hon. William Blount and William Cooke, esquires, who have produced credentials of being duly elected Senators for the State of Tennessee, be ad- mitted to take the oath necessary for their qualification, and their seats accordingly," Ordered, That a paper, purporting to be the credentials of Mr. Blount and Mr. Cocke, be read. And, on the question to agree to the resolution, it passed in the negative — yeas 10, nays 11; as follows: Yeas — Messrs. Bloodworth, Brown, Burr, Butler, Gunn, Langdon, Martin, Eobinson, Tattnall, and Tazewell. Nays — Messrs. Bingham, Bradford, Foster, Latimer, Livermore, Marshall, Potts, Eead, Boss, Eutherfurd, and Trumbull. 74 SENATE ELECTION CASES. [Fifth Congress — ^Fiist sessioii.] WILLIAM BLOUNT, Senator from Tennessee from December 6, 1796, to July 8, 1797. Mr. Blount wa3 expelled from the Senate on July 8,1797, as "having been guilty of a high misde- meanor." An account of his impeachment, which was a proceeding distinct from the expulsion case here given, is found in the Annals of Congress, 5th Cong., 1st and 2d sess., vol. 1, 1797-98, within pages 39to45,and Annalsof Congress,2dand3dsess., vol. 2, 1798-'99, pages 2245 to 241G. The decision in the impeachment trial was that "the court ought not to hold jurisdiction of the said impeachment, and that the said impeachment is dismissed," the grounds on whichrthe decision rested not being given. The aocount of the expulsion case here given consists of a transcript of the proceedings of the S. iialc relating to it from the Annals of Congress, 5th Cong.,lst and 2d sess., vol. l,1797-'98, within pages 33 to 45. Monday, July 3, 1797. The following message was received ftom the President of the United States: Oentlemen of the Senate and House of Bepresenlaiives: The whole of the intelligence which has for some time past been received from abroad, .the correspondence between this Government and the ministers of the belligerent powers residing here, and the advices ftom the officers of the United States, civil and military, upon the frontiers, all conspire to show, in a very strong light, the critical situation ot our country. ~ That Congress might be enabled to form a more perfect judgment of it, and of the measures necessary to be taken, I have directed the proper officers to prepare such collections of extracts from the public correspondence as might afford the clearest information. The reports made to me, ftom the Secretary of State and the Secretary of War, with a collection of documents from eachT)f them, are now communicated to both Houses of Congress. I have desired that the message, reports, and documents may be considered as confidential, merely that the members of both Houses of Congress may be apprised of their contents before they should be made public. As soon as the two Houses shall have heard them, I shall submit to their discretion the publication of the whole or any such parts of them as they shall judge necessaiy or expedient for the public good. JOHN ABAMS. United States, Juli/ 3, 1797. The message and papers were read. On motion, the copy of a letter communicated with the message was again read, in the hearing of iVIr. Blount, who was absent when it was read the first time; and who, on being requested to declare whether he was the author of this letter or not, observed that he wrote a letter to Caiy, but was unable to say whether the copy was a correct one or not without recurrence to his papers; and desired that he might have until to-morrow to reply. Tuesday, July 4, 1797. Mr. Cocke laid before the Senate a letter addressed to him, signed William Blount, purporting that it was necessary for him, the said William Blount, to have further time for recurrence to his papers and other evidence to remove suspicion. Resolved, That so much of the message from the President of the United States, of the 3d instant, and the papers accompanying the same, as relates to a letter purporting to have been written by William Blount, a Senator from the State of Tennessee, be re- ferred to a select committee, to consider and report what, in their opinion, it is proper for the Senate to do thereon ; and that the said committee have power to send tor per- sons, papers, and records relating to the subject committed to them, and that Messrs. Ross, Stockton, Henry, Sedgwick, and Read be the committee. Ordered, That the Senate be, for the present, under an injunction of secrecy on the papers referred to in the above-mentioned message. Wednesday, July 5, 1797. Mr. Ross, from the committee on part of the message of the President of the United States, of the 3d instant, made report; and the report was read. Ordered, That the Vice-President notify William Blount, Senator from the State of Tennessee, by letter, to attend the Senate. The Vice-President accordingly addressed to him the following letter, by the Door- keeper: WILLIAM BLOUNT. 75 Sen ATB Chahbeb, July 6, 1707. Sib: You are hereby required to attend the Senate, in your place, without delay. By order of the Senate. TH. JEFFERSON, President of the Senate. William Blount, Esq., Senator from the Stale of Tennessee. On motion that it be Resolved, That the letter said to have been -written by William 6lount, together with the several notes that passed between the Secretary of State and the British min- ister relative to the said letter, be printed for the use of the members — It was agreed that the consideration of this motion be postponed until to-morrow. Ordered, That the injunction of secrecy respecting the message of the President of the United States of the Sd instant, and the" papers accompanying the same, be taken off. The Vice-President acquainted the Senate that the Doorkeeper had returned his letter addressed agreeably to their order to William Blount, as on inquiry he could not be found. Thuesday, July 6, 1797. Mr. Eoss, from the committee to whom was referred that part of the President's mes- sage of the 3d instant which relates to a letter purporting to have been written by Will- iam Blount, esq., together with the papers accompanying the same, made a further re- port; which was read. Upon which, Mr. Blount read in his place a declaration, purporting that he should attend in his seat, from time to time, to answer to any allegations that might be brought against hira. Ordered, That the consideration of the report of the committee be postponed until 11 o'clock to-morrow morning. On motion by Mr. Blonnf that he be heard by counsel on the subject-matter of this report, A motion was made to postpone the consideration of this motion nntil to-morrow, and it passed in the negative. Resolved, That Mr. Blount be heard by counsel, not exceeding two,' to-morrow morn- ing at 11 o'clock. Ordered, That the Secretary furnish Mr. Blount with attested copies of such papers as he may point out, respecting the subject this day reported on by the committee. ' Feiday, July 7, 1797. Resolved, That the instructions to the committee to whom was referred that part of the President's message of the 3d instant which relates to a letter purporting to have been written by William Blount, esq., together with the papers accompanying the same, be amended by adding, after the word "records," the following words: " and particularly the papers of William Blount, esq." Agreeably to the order of the day, the Senate proceeded to the consideration of there- port of the above-mentioned committee, made yesterday. On motion that such printers as may request it be accommodated with stands on the floor of the Senate, to enable them to take notes of their proceedings on the present oc- casion, it passed in the negative. Mr. Blount notified the Senate that Jared IngersoU and Alexander J. Dallas are the counsel he has employed, agreeably to the vote of the Senate passed yesterday. The President requested Mr. Blount to declare whether or not he was the author of a letter a copy of which was communicated with the message of the President of the United States of the 3d instant. Mr. Blount declined to answer. On motion, in consequence of the request of the counsel above mentioned that they have until Monday next to prepare themselves to show cause why the report of the com- mittee should not be adopted, after debate it was agreed that the question before the Senate be postponed for the purpose of receiving a special message from the House of Eepresentatives. Satueday, July 8,- 1797. The Senate resumed the consideration of the report of the committee to whom was re- ferred that part of the President's message which relates to a letter purporting to have been written by William Blount, esq., together with the papers accompanying the same. On motion, Mr. Justice Smith was desired to attend and administer the oath to such witnesses as might be adduced. . On motion, Mr. Martin and Mr. Cocke, of the Senate, being sworn, severally testified, 76 SENATE ELECTION CASES. pn inspection of the letter said to be written by Mr. Blount, that it was his handwriting, they being acquainted therewith, and having seen him write. . The President then said: ""WUliam Blount, esq., you have now an opportunity, agreeably to the vote oi ben- ate, in pursuance of your own request, by your counsel, to show cause why the report of the committee should not be adopted." Mr. Blount was heard by his counsel, Mr. IngersoU and Mr. Dallas; and, After debate, A motion was made to postpone the consideration of the report of the committee to the next session of Congress; and it was decided in the negative — yeas 7, nays 19; as follows: Yeas— Messrs. Bloodworth, Brown, Cocke, Gunn, Martin, Tazewell, and Tatnall. Nays— Messrs. Bingham, Bradford, Foster, Goodhue, Henry, HUlhouse, Howard, Hunter, Latimer, Laurance, Livennore, Marshall, Eead, Boss, Kutherfurd, Sedgwick, Tichenor, Tracy, and Vining. On the question to agree to the report of the committee, as follows : EEPOET OF COMMITTEE. [The committee consisted of Messrs. Eoss, Stockton, Henry, Sedgwick, and Read.] The committee to whom was referred that part of the President's message which re- lates to a letter purporting to have been written by "William Blount, esq. , one of the Sen- ators from the State of Tennessee, together with the papers accompanying the same, hav- ing had the same under their consideration, beg leave to make a further report: That Mr. Blount, having declined an acknowledgment or denial of the letter im- puted to him, and having failed to appear to give any satisfactory explanation respecting it, your committee sent for the original letter, which accompanies this report, and it is in the following words: Colonel King's Ieon "Woeks, Apnl 21, 1797. Deae Caeey: I wished to have seen you before I returned to Philadelphia, but I am obliged to return to the session of Congress, which commences on the 15th of May. Among other things that I wished to have seen you about was the business Captain Chesholm mentioned to the British minister last winter at Philadelphia. I believe, but am not quite sure, that tlie plan then talked of will be attempted this fall ; and if it is attempted it will be in a much larger way than then talked of, and if the Indians act their part I have no doubt but it will succeed. A man of consequence has gone to England about the business, and if he makes arrangements as he expects I shall myself have a hand in the business, and probably shall be at the head of the busi- ness on the part of the British. You are, however, to understand that it is not yet quite certain that the plan will be attempted, yet you will do well to keep things in a proper train of action in case it should be attempted, and to do so vrill require all your manage- ment — I say require all your management, because you must take care in whatever you say to Rogers or anybody else not to let the plan be discovered by Hawkins, Dinsmore, Byers, or any other person in the Interest of the United States or Spain. If I attempt this plan I shall expect to have you and all my Indian country and In- dian friends vrith me; but you are now in good business, I hope, and you are not to risk the loss of it by saying anything that will hurt you until you again hear from me. Where Captain Chesholm is I do not know; I left him in Philadelphia in March, and he frequently visited the minister and spoke upon the subject; but I believe he will go into the Creek Nation by way bf South Carolina or Georgia. He gave out he was going to England, but I did not believe him. Among other things that you may safely do will be to keep up my consequence with Watts and the Creeks and Cherokees generally, and you must by no means say anything in favor of Hawkins, but, as often as you can with safety to yourself, you may teach the Creeks to believe he is no better than he should be. Any power or consequence he gets will be against our plan. Perhaps Rogers, who has no office to lose, is the best man to give out talks against Hawkins. Eead the letter to Rogers, and if you think it best to send it to him put a wafer in it and forward it. to him by a safe hand, or perhaps you had best send for him to come to you, and speak to him yourself respecting the state and prospect of things. I have advised you in whatever you do to take care of yourself. * I have now to tell you to take care of me, too, for a discovery of the plan would prevent the success and much injure all the parties concerned. It may be that the commissioners may not run the line as the Indians expect or wish, and in that case it is probable the Indians may be taught to blame me for making the treaty. To such complaints against me, if such there are, it may be said by my friends WILLIAM BLOUNT. 77 at proper times and places, that IJoubleliead conflimed the treaty with the President at Philadelphia, and receives as much as $5,000 a year, to be paid to the nation, over and above the first price; indeed, it may with truth be said that, though I made the treaty, that I made it by the instructions of the President, and, in fact, it may with truth be said that I was by the President instructed to purchase much more land than the Indi- ans would agree to sell. Thissort of talk will be throwing all the blame off me upon the late President, and as he is now out of office it will be of no consequence how much the Indians blame him. Among other things that may be said for me is that I was not at the running of the line, and that if I had been it would have been run more to their sat- isfaction. In short, you understand the subject, and must take care to give out the proper talks, to keep up ray consequence with the Creeks and Cherokees. Can't Rogers contrive to get the Creeks to desire the President to take Hawkins out of the nation? For if he stays in the Creek Nation and gets the good- will of the nation he can and will do great injury to our plan. "When you have read this letter over three times, then burn it. I shall be at Knoxville in July or August, when I will send for Watts and give him the whisky I promised him. I am, &c., WILLIAM BLOUNT. Two Senators, now present in the Senate, have declared to the committee that they are well a"equainted with the handwriting of Mr. Blount, and have no doubt that this letter was written by him. Your committee have examined many letters from Mr. Blount to the Secretary of War, a number of which are herewith submitted, as well as the letter addressed by Mr. Blount to Mr. Cook, his colleague in the Senate, and to this committee, respecting the business now under consideration, and find them all to be of the same handwriting with the letter in question. Mr. Blount has never denied this letter, but, on the other hand, when the copy transmitted to the Senate was read in his presence, on the 3d instant, he acknowledged in his place that he had written a letter to Carey, of which he had preserved a copy, but could not then decide whether the copy read was a true one. Your committee are therefore fully persuaded that the original letter now produced was written and sent to Carey by Mr. Blount. They also find that this man Carey, to whom it was addressed, is, to the knowledge of Mr. Blount, in the pay and employment of the United States as their interpreter to the Cherokee Nation of Indians, and an assistant in the public factory at Tellico Blockhouse. That Hawkins, who is so often mentioned in this letter as a person who must be brought into suspicion among the Creeks, and if possible driven from his station, is the superintendent of Indian affairs for the United States among the Southern Indians; Dinsmore is agent for the United States in the Cherokee Nation; and Byers, one of the agents in the public factory at Tellico Blockhouse. The plan hinted at in this extraordinary letter to be executed under the auspices of the British is so capable of different constructions and conjectures that your committee at present forbear giving any decided opinion respecting it, except that to Mr. Blount's own mind it appeared to be inconsistent with the interests of the United States and of Spain, and he was therefore anxious to conceal it from both. But when they consider his attempts to seduce Carey from his duty as a faithful interpreter, and to employ him as an engine to alienate the .affections and confidence of the Indians from the public offi- cers of the United States residing among them ; the measures he has proposed to excite a temper which must produce the recall or expulsion of our superintendent from the Creek Nation ; his insidious advice tending to the advancement of his own popularity and con- sequence, at the expense and hazard of the good opinion which the Indians entertain of this Government and of the treaties subsisting between us and them, your committee have no doubt that Mr. Blount's conduct has been inconsistent with his public duty, renders him unworthy of a further continuance of his present public trust in this body, and amounts to a high misdemeanor. They therefore unanimously recommend to the Senate an adoption of the following resolution: Besolved, That William Blount, esq., one of the Senators of the United States, having been guilty of a high misdemeanor, entirely inconsistent with his public trust and duty as a Senator, be, and he hereby is, expelled from the Senate of the United States. The report was adopted — yeas 25, nay 1; as follows: Yeas — Messrs. Bingham, Bloodworth, Bradford, Brown, Cocke, Foster, Goodhue, Gunn, Henry, Hillhouse, Howard, Hunter, Latimer, Laurance, Livermore, Martin, Mar- shall, Uead, Eoss, Eutherfurd, Sedgwick, Tatnall, Tichenor, Tracy, and Vining. Mr. Tazewell voted in the negative. So it was Besolved, That William Blount, esq., one of the Sjenators of the United States, having been guilty of a high misdemeanor, entirely inconsistent with his public trust and duty as a Senator, be, and he hereby is, expelled from the Senate of the United States. 78 SENATE ELECTION CASES. MoNDAT, July 10, 1797. Ordered, That the Secretary transmit to the executive of the State of Tennessee an at- tested copy of the proceedings of the Senate on the report of the committee, of the 6tb instant, for the expulsion of William Blount. . Ordered, That the Secretary lay before the President of the United States an attested copy of the proceedings of the Senate on his message of the 3d instant, transmitting a lett«r signed William Blount, directed to Mr. Carey. JOHN SMITH. 79 [Tenth Congress — First session.] JOHN SMITH, Senator from Ohio from October 25, 1803, till he resigned, April 25, 1808. November 27, 1807, the Senate resolved that a committee be appointed to inquire whether it waa compatible with the privileges of the Senate that Mr. Smith, against whom bills of indictment were found at the United States circuit court of Virginia for treason and misdemeanor, should be pe> mltted longer to have a seat therein ; and that the committee inquire into all the facts regarding the conduct of Mr. Smith as an alleged associate of Aaron Burr, and report to the Senate. Decem- ber 31, tlie committee reported that the conspiracy of Aaron Burr and his associates was of such a character, and that its existence was so established by evidence, that it was incompatible with the privileges of the Senate that any person engaged in it should be permitted to hold a seat in the Sen- ate. The committee submit to the Senate the evidence collected, and leave it to the Senate to determine whether the facta are sufficient to substantiate the participation of Mr. Smith in the conspiracy. The committee reported that the bills of indictment found against Mr. Smith in the United States circuit court at Richmond were precisely similar to those found against Aaron Burr; that owing to the fact that certain evidence ivas not admitted in the trial of Mr. Burr, the jury had found that he was "not proved to be guilty, under that indictment, by any evidence submitted to them^'j that on account of this decision the counsel for the United States abandoned ' the prosecution against Mr. Smith ; that the committee was not disposed to question the correct- ness of this decision on a case of treason before acourtof criminal jurisdiction, but. that whether the transactions proved against Aaron Burr did or did not amountjin technicallanguage, to an overt act of levying war, there was no^doubt in the minds of the committee that but for the vigilance and energy of the Government in crushing his designs they would have resulted in warj that a grand jury had cliarged Mr. Smith with being an accomplice in these designs, and that the fact that undei the circumstances the prosecution against Mr. Smith had been abandoned did not, in tlie opinion of the committee, remove the imputation which the accusations of the grand jury had brought upon him; that the committee would not permit themselves to comment upon the evidence sub- mitted or the answers which Mr. Smith had given as sufficient for his justification, but that they felt compelled to submit for the consideration of the Senate a resolution that by his participation in the conspiracy of Aaron Burr he had been guilty of conduct incompatible with his station as a Senator, and that he be expelled therefor. April 9, 1808, after long debate on the question to agree to the res- olution, 19 voted yea and 10 nay; so that, two-thirds of the Senators not concurring therein, he was not expelled. The history of the case here givenoonsistsof a transcript of the proceedings of the Senate relating to it from Senate Journal, 10th Cong., 1st sess., with the report of the committee from Annals of Con- gress, 10th Cong., Istsess., vol. 1, pages 56-62. Special references to the debates of each day are inserted below. Feiday, November 27, 1807. The Hon. John Smith, from the State of Ohio, attended. On motion, the following resolution, hating heen amended, was agreed to: "Besolved, That a committee be appointed to inquire whether it be compatible with the honor and privileges of this House that John Smith, a Senator from the State of Ohio, against whom bUls of indictment were found at the circuit court of Virginia, held .at Eichmond in August last, for treason and misdemeanor, should be permitted any longer to have a seat therein; and that the committee do inquire into all the facts re- garding the conduct of Mr. Smith aa an alleged associate of Aaron Burr, and report the same to the Senate." Ordered, That Messrs. Adams, Maclay, Franklin, Smith of Maryland, Pope, Thruston, and Anderson be the coinmittee. During the discussion af the- preceding resolution, Mr. T iffin , by permission, read in his place a letter from Mr. Smith, as follows: Washington, November 27, 1807. Deae Sie: Just having heard that a motion is pending in the Senate to appoint a committee to inquire into certain charges exhibited against me at Richmond by the late grand jury, I beg you, sir, to assure the Senate, in my name, that nothing will afford me more pleasure than to have a public investigation of the said charges, and an oppor- tunity to vindicate my innocence, and I beg you, from your seat, to make this state- ment. I am, dear sir, respectfully, yours, &c., . JOHN SMITH. Hon. Mr. TirriN. [An account of the debate is found on pages 39-42 of Annals of Congresa referred to In the head-note.] 85 SENATE ELECTION CASES. ' MOSDAY, Novemher 30, 1807. Mr. Adams stated that he was instructed by the committee appointed on the 27th instant to inquire into the conduct of John Smith, a Senator from the State of Oh(0, to submit to the Senate the following resolution; which was read and agreed to: - "Besolved, That the President of the United States be requested to cause to be laid before the Senate such information as may be in his possession in relation to the con- duct of John Smith, a Senator from the State of Ohio, as an aUeged associate of Aaron Burr." T ■ J Ordered, That the Secretary lay this resolution before the President of the United States. t, -i Mr. Adains, from the same committee, also stated that he was instructed to submit to the Senate the following resolution; which was read and agreed to: "Besolved, That the committee a;ppointed on the 27th instant to inquire and report the facts respecting the conduct of John Smith, a Senator from the State of Ohio, as an alleged associate of Aaron Birrr, be authorized to extend their inquiries to any other facts which, in their opinion, would be incompatible with bis duty as a Senator of the United States, and that they be authorised to send for persons, papers, and records." ■Wednesday, December 2, 1807. , The following written message was received from the President of the United States, by Mr. Coles, his secretary: To tJw Senate of the United States : In compliance with the request made in the resolution of the Senate of November 30 I must inform them that when the prosecutions against Aaron Burr and his associates were instituted I delivered to the Attorney-General all the evidence on the subject, formal and informal, which I had received, to be used by those employed in the pros- ecutions. On the receipt of the resolution of the Senate, I referred it to the Attorney- General, with'a request that he would enable me to comply with it by putting into my hands such of the papers as might give information relative to the conduct of John Smith, a Senator from the State of Ohio, as an aUeged associate of Aaron Burr, and having this moment received from him the affidavit of Elias Glover, with an assurance that it is the only paper in his possession which is within the term of the request of the Senate, I now transmit it for their use. TH. JEFFERSON. Decembbk 2, 1807. The message was read. Ordered, That the message and paper therein mentioned be referred to the committee appointed on the 27th of November last to inquire into the conduct of Mr. Smith as an alleged associate of Aaron Buxr. Feiday^, December 4, 1807. Mr. Adams stated that he was instructed by the committee appointed to inquire into the conduct of John Smith, a Senator from the State of Ohio, to submit the following resolution; Which was read and agreed to: "Mesolved, That the committee appointed to inquire into the conduct of John Smith, a Senator from the State of Ohio, be authorized to admit the attendance of Mr. Smith." Monday, December 7, 1807. Mr. Adams stated that he was instructed by the committee appointed to inquire into the conduct of John Smith, a Senator from the State of Ohio, to submit the following resolution; which was read and agreed to: "Besolved, That the committee appointed to inquire and report the facts relating to the conduct of John Smith, a Senator from the State of Ohio, be authorized to cause to be printed. Tinder their inspection, aU such documents and papers touching the sub- ject-matter of the inquiries on which they have been appointed as may appear nec^sary to the committee, previous to the presentation of the same to the Senate." Thuesday, December 31, 1807. Mr. Adams stated that the committee appointed on the 27th of November last "to inquire whether it be compatible with the honor and privileges of this House that John Smith, a Senator from the State of Ohio, against whom bills of indictment were found at the circuit court of Virginia, held at Bichmond in August last, for treason and mis- JOHN SMITH. 81 demeanor, shoald be permitted any longer to have a seat therein," were ready to report, and he made the following motion; which was read and agreed to: Ordered, That John Smith, a Senator from the State of Ohio, be notified by the Vioe- Vresident to attend in his place. The Vice-President accordingly notified Mr. Smith in the words following: " SlE: Yon are hereby reqnired to attend the Senate in your place without delay. "By order of the Senate. "GEO. CLINTON, "President of the Senate. "John Smith, Esq., " Senator from the State of Ohio." And Mr. Smith attended. Whereupon, Mr. Adams made report from the committee last mentioned; and the report was read. On motion. Ordered, That three hundred copies thereof be printed for the use of the Senate. Mr. Adams also, from the same committee, made a further report, which was read. Ordered, That it lie for consideration. The queries addressed by the committee to Mr. Smith, and his answers to the same, were read; also the testimony of James Taylor, esq., and Mr. Smith's letter to the com- mittee relating thereto. A motion was made by Mr. Hillhouse that Mr. Smith's answers be printed for the use of the Senate; and objections arising thereon that the said answer contained excep- tionable matter which ought not to be printed; It was, agreed, by consent of Mr. Smith, that he should take back his answers, and expunge such excepfionable matters, and that the answers should then be printed, under the inspection of the chairman of the committee. [An account of the debate is found on pages 62, 63 of the Annals of Congress referred to in the head-note.] EKPOET OF COMMITTEE. [The committee consisted of Messrs. Adams, Maclay, Franklin, Smith of Maryland Pope, Thruston, and Anderson.] Tour committee are of opinion that the conspiracy of Aaron Burr and his associates against the peace, union, and liberties of these States is of such a character, and that its existence is established by such a mass of concurring and mutually corroborative testi- mony, that it is incompatible, not only with the honor and privileges of this House, but with the deepest interests of this nation, that any person engaged in it should be per- mitted to hold a seat in the Senate of the United States. Whether the facts, of which the committee submit herewith such evidence as, under the order of the Senate, they have been able to collect, are sufficient to substantiate the participation of Mr. Smith in that conspiracy or not will remain for the Senate to decide. The committee submit also to the consideration of the Senate the correspondence be- tween Mr. Smith and them, through their chairman, in the course of their meetings. The committee have never conceived themselves invested with authority to try Mr. Smith. Their charge was to report an opinion relating to the honor and privileges of the Senate and the facts relating to the conduct of Mr. Smith. Their opinion, indeed, cannot be expressed in relation to the privilege of the Senate without relating,' at the same time, to Mr. Smithy's right of holding a seat in this body; but in that respect the authority of the committee extends only to proposal, and ndt to decision. But as he manifested a great solicitude to be heard before them, they obtained permission from the Senate to admit his attendance, commnnicated to him the evidence in their possession by which he was inculpated, furnished him in writing with the questions arising from it which appeared to them material, and received from him the information and explana- tions herewith submitted as part of the facts reported. But Mr. Smith has claimed as a right to be heard in his defense by counsel, to have compulsory process for witnesses, and to be confronted with his accusers, as if the committee had been a circuit court of the United States. But it is before the Senate itself that your committee conceived i,t just and proper that Mr. Smith's defense of himself should be heard. Nor have they conceived themselves bound in this inquiry by any other rnles than those of natural justice and equity due to a brother Senator on the one part, and to their country on the other. Mr. Smith represents himself on this inquiry as solitary, friendless, and unskilled, contending for rights which he intimates are denied him; and the defender of Senatorial SBG 6 82 SENATE ELECTION CASES. privileges which he seems apprehensive yrill be refused him by Senators, liable, so long iis they hold their offices, to have his case made their own. The, committee are not nn- ^ aware that in the vicissitudes of human events no member of this body can be sure that Ills conduct will never be made a subject of inquiry and decision before the assembly to which he belongs. They are aware that, in the course of proceeding which the Senate may now sanction, its members are marking out a precedent which may hereafter apply to themselves. They are sensible that the principles upon which they have acted ought to have the same operation upon their own claims to privilege as upon those of Mr. Smith; the same relation to the rights of their constituente which they have to those of the legislature which he represents. They have deemed it their duty to advance in the progress of their inquiry with peculiar care and deliberation. They have de£|,lt out to Mr. Smith that measure which, under the supposition of similar circumstances, they would be content to find imparted to themselves; and they have no hesitation in declar- ing that under such imputations, colored by such evidence, they should hold it a sacred obligation to themselves, to their fellow-Senators, and to their country to meet them by direct, unconditional acknowledgment or denial, without seeking a refuge from the broad face of day in the labyrinth of technical forms. In examining the question whether these forins of judicial proceedings or the rules of judicial evidence ought to be applied to the exercise of that censorial authority which the Senate of the United States possesses over the conduct of its members, let us assume as the test of their application either the dictates of unfettered reason, the letter and spirit of the Constitution, or precedents domestic or foreign, and your committee believe that the result will be the same; that the power of expelling a member must, in its nat- ure, be discretionary, and in its exercise always more summary than the tardy process of judicial tribunals. The power of expelling a member for misconduct results on the principles of common sense from the interest of the nation that the high trust of legislation should be invested in pure hands. When the trust is elective it is not to be presumed that the constituent body vrill commit the deposit to the keeping of worthless characters. But when a man whom his fellow-citizens have honored with their confidence on the pledge of his spot- less reputation has degraded himself by the commission of infamous crimes which be- come suddenly and unexpectedly revealed to the world, defective indeed would be that institution which should be impotent to discard from its bosom the contagion of such a member, which should have no remedy of amputation to apply until the poison had reached the heart. The question upon the trial of a criminal cause before the courts of common law is not between guilt and innocence, but between guilt and the possibility of innocence. If a doubt can possibly be raised, either by the ingenuity of the party or of his counsel, or by the operation Of general rules in their unforeseen application to particular cases, that doubt must be decisive for acquittal, and the verdict of not guilty perhaps in nine cases out of ten means no more than that the guilt of the party has not been demonstrated in the precise, specific, and narrow forms prescribed by law. The humane spirit of the laws inultiplies the barriers for the protection of innocence and freely admits that these barriers may, be abused for the shelter of guilt. It avows a strong partiality favorableto the person upon trial, and acknowledges the preference that ten guilty should escape rather than that one innocent should suffer. The interest of the public that a particu- lar crime should be punished is but as one to ten, compared with the interest of the party, that innocence should be spared. Acquittal only restores the party to the com- mon rights of every other citizen; it restores him to no public trust; it invests him with no public confidence; it substitutes the sentence of mercy for the doom of justice, and to the eyes of impartial reason in the great majority of cases must be considered rather as a pardon than a justification. But when a member of a legislative body lies under the imputation of aggravated of- fenses and the determina^on upon his cause can operate only to remove him from a station of extensive powers andimportaut trust, this disproportion between the interest of the public and thfe interest of the individual disappears; if any disproportion exists it is of an opposite kind. It is not better that ten traitors should be members of this Senate than that one innocent man should suffer expulsion. In either case, no doubt, the evil would be great. But in the former it would strike at the vitals of the nation; in the latter it might, though deeply to be lamented, only be the calamity of an indi- vidual. By the letter of the Constitution the power of expelling a member is given to each of the two Houses of Congress, without any limitation other than that which requires a concurrence of two- thirds of the votes to give it effect. The spirit of the Constitution is perhaps in no respect more remarkable than in the solicitude which it has manifested to secure the purity of the Legislature by that of the elements of its composition. A qualification of age is made necessary for the members JOHN SMITH. 83 to insure the maturity of their judgment; a qualification of long citizenship to insure a community of interests and affections between them and their country; a qualification ' of residence to provide a sympathy between every member and, the portion of the Union from which he is delegated; and to guard, as far as regulation can gnard, agaiiist every bias of personal interest and every hazard of interfering duties, it has made every member of Congress ineligible to office which he conttibuted to create, and every ofiicer of the Union incapable of holding a seat in Congress. Yet, in the midst of all this anxious providence of legislative virtue, it has not authorized the constituent body to recall in any case its representative. It has not subjected him to removal by impeachment; and when the darling of the people's choice has become their deadliest foe can it enter the imagination of a reasonable man that the sanctuary of their legisla- tion must remain polluted with his presence until a court of common law with its pace of snail can ascertain whether his crinie was committed on the right or on the left bank of a river; whether a puncture of difference can be found between the words of the Charge and the words of the proof; whether the witnesses of his guilt should or should not be heard by his j ury ; and whether he was punishable because present at an overt act or in- tangible to public j astice because he only contrived and prepared ? Is it conceivable that a traitor to that country which has loaded him with favors, guilty to the common under- standing of all mankind, should be suffered to return unquestioned to that post of honor and confidence where, in the zenith of his good fame, he had been placed by the esteem of his countrymen, and in defiance of their wishes, in mockery of their fears, surrounded by the public indignation, but inaccessible to its bolt, pursue the purposes of treason in the heart of ttie national councils ? Must the assembled rulers of the land listen with calmness and indifference session after session to the voice of notorious infa,my until the sluggard step of municipal justice can overtake his enormities? Must they tamely see the lives and fortunes of millions, the safety of present and future ages, "depending upon his vote recorded with theirs, merely because the abused benignity of general maxims may have remitted to him the forfeiture of his life? Such, in very supposable cases, would be the unavoidable consequences of a principle which should offer the crutches of judicial tribunals as an apology for crippling the Congressional power of expulsion. Far different, in the opinion of your committee, is the spirit of our Constitution. They believe that the very purpose for which this power was given was to preserve the Legislature from the first approaches of infection; that it was made discretionary because it could not exist under the procrastination of general rules; that its process must be summary, because it would 'be rendered nugatory by delay. Passing from the constitutional view of, the subject to that which is afforded by the au- thority of precedent, your committee find that since the establishment of our present National Legislature there has been but one example of expulsion from the Senate. In that case the member implicated was called upon in the first instance to answer whether . he'was the author of a letter the copy of which only was produced, and the writing of which was the cause of his expulsion. He was afterwards requested to declare whether he was the author of the letter itself,, and declining in both cases to answer, the fact of his having written it was established by a comparison of his handwriting and by the be- lief of persons who had seen him write, upon inspection of the letter. In all these points the committee perceive the admission of a species of evidence which in courts of criminal jurisdiction would be excluded, and in the resolution of expulsion the Sen- ate declared the person inculpated guilty of a high misdemeanor, although no present- ment or indictment had been found against him and no prosecution of law was ever commenced upon the case. * This event occurred in July, 1797. About fifteen months before that time, upon an application from the legislature of Kentucky requesting an investigation by the Senateof a charge against one of the members from that State of perjury, which had been made in certain newspaper publications, but for which no prosecution had been commenced, the Senate did adopt by a majority of 16 votes to 8 the report of a committee purport- ing that the Senate had no jurisdiction to try the charge, and that the memorial of the Kentucky legislature should be dismissed. There were, indeed, very sufficient reasons of a different kind assigned in the same report for not pursuing the investigation in that particular case any further; and your committee believe that in the reasoning of that report some principles were assumed and some inferences drawn which were alto- gether unnecessary for the determination of that case which were adopted without a full consideration of all their consequences, and the inaccuracy of which was clearly proved by the departure from them in the instance which was so soon afterwards to take place. It was the- first time that a question pf expulsion had ever been agitated in Congress since the adoption of the Constitution, and the subject "being thus entirely new, was considered perhaps too much with reference to the particular circumstances of the mo- ment, and not enough upon the numerous contingencies to which the general question 84 SENATE ELECTION CASES. might apply. Your coinraittce state this opinion with some confidence, because of the sixteen Senators who in March, 1796, voted for the report dismissing the memorial of the Kentucky legislature eleven, on the subsequent occasion in July, 1797, voted also for that report which concluded with a resolution for the expulsion of Mr. Blount. The other five were no longer present in the Senate. Yet, if the principles advanced in the first report had been assumed as the ground of proceeding at the latter period the Sen- ate would have been as impotent of jurisdiction upon the offense of Mr. Blount as they had supposed themselves upon the allegation against Mr. Marshall. Those parts of the fifth and sixth articles amendatory to the Constitution upon which the report in the case of Mr. Marshall appears to rely for taking awa;y the jurisdiction of the Senate your committee suppose can only be undtrstood as referring to prosecu- tibnsatlaw; to suppose that they were intended as restrictions upon powers expressly granted by the Constitution to the Legislature or either of its branches would in a manner annihilate the power of impeachment as well as that of expulsion. It would lead to the absurd conclusion that the authority given for the purpose of removing in- iquity from the seats of power should be denied its exercise in precisely those cases which most loudly call for its energies. It would present the singular spectacle of a legislature vested with powers of expelling its members, of ipipeaching, removing, and disqualifying public officers for trivial transgressions beneath the cognizance of the law, yet forbidden to exert them against capital or infamous crimes. These two articles were in substance borrowed from similar regulations contained in that justly celebrated statute which for so many ages has been distinguished by the name of the Great Charter of England. Yet in that country, where they are recognized as the most solid foundations of the liberties of the nation, they have never been considered as interfering with the power of expelling a member, exercised at all times by the House of Commons; a power which there, however, rests only upon parliamentary usage, and has never been bestowed, as in the Constitution of the United States, by any act of supreme legislation. From a number of precedents which have been consulted it is found that the exercise of this authority there has always been diseretiona;ry and its process always far otherwise than compendious in the prosecutions before the judicial courts. So far, indeed, have they been from supposing a conviction at law necessary to precede a vote of expulsion that in one instance a resolution to demand a prosecution appears immedi- ately after the adoption of the resolution to expel. In numerous cases the member sub- mits to examination, adduces evidence in his favor, and has evidence produced against him, with or without formal authentication, and the discretion of the house is not even ^restricted by the necessary concurrence of more than a bare majority of the votes. The provision in our Constitution which forbids the expulsion of a member by an or- dinary majority and requires for this act of rigorous and painful, duty the assent of two- thirds your committee consider as a wise and sufficient guard against the possible abuse of this legislative discretion. In times of heat and violent party spirit the rights of the minority might not always be duly respected if a majority could expel their members under no other control than that of their own discretion. The operation of this rule is of great efficacy, both over the proceedings of the whole body and over the conduct of every individual member. The times when the most violent struggles of contending parties occur — when the conflict of opposite passions is most prone to excess — are precisely the times when the numbers are most equally divided; when the majority amounts to the proportion of two-thirds the security in its own strength is of itself a guard against ex- traordinary stretches of power; when the minority dwindles to the proportion of one-third its consciousness of weakness dissuades from anj attempts to encroach upon the rights of the majority, which might provoke retaliatipn. But if expulsion were admissible only as a sequel to the issue of a legal prosecution or upon the same principles and forms of testimony which are established in the criminal courts, your committee can see no pos- sible reason why it should be rendered still more imbecile by the requisition of two-" thirds to give it effect. ' It is now the duty of your committee to apply the principleswhich they have here en- deavored to settle and elucidate to the particular case uponwhich the Senate havedirected them to report. The bills of indictment found against Mr. Smith at the late session of the circuit court of the United States at Richmond (copies of which are herewith submit- ted) are precisely similar to those found against Aaron Burr. From the volume of printed evidence communicated by the President of the United States to Congress, relatingtothe trial of Aaron Burr, it appears that a great part of the testimony which was essential to his conviction upon the indictment for treason was withheld from the jury upon an opinion of the court that Aaron Burr, not having been present at the overt act of treason alleged in the indictment, no testimony relative to his conduct or declarations else- where, and subsequent to the transactions on Blannerhasset's Island, could be admitted. And in consequence of this suppression of evidence the traverse jury found a verdict "that Aaron Burr was not proved to be guilty, under that indictment, by any evidence JOHN SMITH. 86 submitted to them." It was also an opinion of the court that none of the transactions of which evidence was given on the trial of Aaron Burr did amount to an overt act of levyingwar, and, of course, that they did not amount to, treason. These decisions, form- ing the basis of the issue upon the trials of Burr, anticipated the event which must have awaited the trials of the bills against Mr. Smith, who, from the circumstances of his case, must have been entitled to the benefit of their application; they were the sole induce- ments upon which the counsel for the United States abandoned the prosecution against him. Your committee are not disposed' now to question the correctness of these decisions on a case of treason before a court of criminal jurisdiction. But whether the transactions proved against Aaron Burr did or did not amount, in technical language, to an overt act of levying war, your committee have not a scruple of doubt on their minds that but for the vigUance and energy of the Government and of faithful citizens under its direc- tions in arresting their progress and in crushing his designs, they would, in a very short lapse of time, have terminated not only in a war, but in a war of the most horrible de- scription, in a war at once foreign and domestic. As little hesitation have your com- mittee in saying that if the daylight of evidence, combining one vast complicated intention with overt acts innumerable;, be not excluded from the mind by the curtain of artificial rules the simplest understanding cannot but see what the subtlest understand- ing cannot disguise, crimes before which ordinary treason whitens into virtue; crimes of which war is the mildest feature. The debauchment of our Army, the plunder and devas- tation of our own and foreign territories, the dissolution of our national Union, and the Toot of interminable civil war were but the means of individual aggrandizement, the steps to proj ected usurpation. If the ingenuity of a demon were tasked to weave into one com- position all the great moral and political evils which could be inflicted upon the people of these States it could produce nothing more than a texture of war, dismemberment, and despotism. Of these designs a grand jury composed of characters as respectable as this nation can boast have upon the solemnity of their oaths charged John Smith with being an accom- plice. The reasons upon which the trial of this charge has not been submitted to the ver- dict of a jury have been shown by your committee and are proved by the letter from the attorney of the United States for the district of Virginia, herewith reported. And your committee are of opinion that the dereliction of the prosecution on these grounds cannot in the slightest degree remove the imputation which the accusations of the grand jury have brought to the door of Mr. Smith. Your committee wUl not permit themselves to comment upon thetestimony which they submit herewith to the Senate; nor upon the answers which Mr. Smith has given as sufficient for his justification. Desirous as the committee have been that this justifica- tion might be complete, anxiously as they wished for an opportunity declaring their belief of his innocence, they can neither control nor dissemble the operation of the evi- dence upon their minds; and, however painful to their feelings, they find themselves compelled by a sense of duty paramount to every other consideration to submit to the Senate for their consideration the following resolution: Resolved, That John Smith, a Senator from the State of Ohio, by his participation in the conspiracy of Aaron Burr against the peace, union, and liberties of the people of the United States, has been guilty of conduct incompatible with his duty and station as a Senator of the United States, and that hei be therefore, and hereby is, expelled from the Senate of the United States., Monday, January 4, 1808. Mr. Adams laid before the Senate a letter from Mr. Smith, directed to the chairman of the committee of inquiry appointed 27th November, which letter Mr. Smith requested might be considered as a part of his answer; and the letter was read. Tuesday, January 5, 1808. On motion by Mr. Adams, the minutes of the committee of inquiry appointed the 27th of November last, on the conduct of John Smith, a Senator from the State of Ohio, also sundry papers relative to the inquiry, were read, and On motion by Mr. Bradley, it was agreed that the report of the committee be the order of the day for Thursday next. Thuesday, January 7, 1808. Agreeably to the order of the day, the Senate resumed the consideration of the report of the committee of inquiry appointed on the 27th of November last, on the conduct of John Smith, a Senator from the State of Ohio; and the report was read. Mr. Smith's letter to the President, of the 4th instant, was also read. On request of Mr. Smith, that he be informed specifically of the charges against him; 86 SENATE ELECTION CASES. that he be allowed to make defense against such charges, and process to compel the at-, tendance of witnesses necessary in his defense, and the privilege of being heard by counsel ; After debate, A motion was made by Mr. Hillhou^e that it be Resolved, That Mr. Smith be heard by counsel, not exceeding two, to show cause why the report of the committee should not be adopted; And, on the question to agree to this resolution, it passed unanimously in the affirma- tive — yeas 33. The yeas and nays having been required by one-fifth of the Senators present, Those who voted are Messrs. Adams, Anderson, Bayard, Bradley, Condit, Crawford, Gaillard, Giles, Gilman, Goodrich, Gregg, Hillhouse, Howland, Kitchel, Maclay, Math- ewson, Milledge, Mitchill, Moore, Parker, Pickering, Pope, Eeed, Robinson, Smith of Maryland, Smith of New York, Smith of Tennessee, Sumter, Thruston, Tiffin, Turner, and White. On motion. Ordered, That Wednesday next be assigned for the hearing. [An account of the debate is found on pages 66-78 of the Annals of Congress referred to in the head-note. ] Tuesday, January 12, 1808. On request of Mr. Smith, of Ohio, for a copy of the minutes of the committee appointed on the 27th of November last, to inquire into his conduct, and also a copy of all the corre- spondence between them and himself, The following motion was made by Mr. Crawford: Ordered, That a copy of the minutes of the pommittee appointed on the 27th of No- vember last, to inquire into the conduct of John Smith, of Ohio, and also a copy of the correspondence between the committee and said Smith, be furnished to the said John Smith. And on the question to agree to this motion, it was determined in the affirmative — yeas 17, nays 9. The yeas and nays having been required by one-fifth of the Senators present. Those who voted in the affirmative are Messrs. Bayard, Crawford, Goodrich, Gregg, Hillhouse, Howland, Mathewson, Milledge, Mitchill, Pickering, Pope, Eeed, Smith of New York, Sumter, Thruston, Turner, and White. Those who voted in the negative are Messrs. Anderson, Bradley, Condit, Giles, Gil- man, Kitchel, Moore, Parker, and Smith of Tennessee. , Wednesday, January 13, 1808. Agreeably to the order of the day, the Senate resumed the consideration of the report of the committee appointed the 27th of November last, to inquire into the conduct of , John Smith, a Senator from the State of Ohio. The President sitated to Mr. Smith that he had now an opportunity to show cause why the report of the committee should not be adopted, and he was desired to name his counsel. He accordingly informed the Senate that he had engaged Luther Martin and Francis S. Key, esquires, as counsel; and On motion of Mr. Bradley, Shall Mr. Key be admitted as counsel for Mr. Smith? it was determined in the affirmative; and On motion, Shall Mr. Martin be admitted as counsel for Mr. Smith? it was determined in the negative. On request by Mr. Bayard that Mr. Smith inform the Senate whether, under present circumstances, he is ready to proceed, Mr. Smith, by his counsel, offered his affidavit, together with the following applica- tion: "John Smith, of Ohio, offers his affidavit to the honorable Senate, and requests' a reasonable time to procure the testimony therein stated, and the proper means to enable him to produce it. ' ' The affidavit was, read. The letter of the 4th of January to the President from Mr. Smith, requesting to be heard by counsel, was again read. On motion by Mr. Giles, , Ordered, That the affidavit and application, together with the subsequent report of the committee appointed 27th of November last to inquire into the conduct of John Smith, a Senator from the State of Ohio, be printed for the use of the Senate. On motion by Mr. Oilman, it was agreed that the further consideration of the appli- cation of Mr. Smith, made this day by his counsel, be postponed until to-morrow. JOHN SMITH. 87 Thuesday, January 14, 1808. > Mr. Adams moved that sundry amendments and notes of reference be entered upon the minutesof the proceedings of the committee appointed on the 37th of November last to inquire into the conduct of John Smith, a Senator from the State of Ohio, as an alleged accomplice of Aaron Burr; which were read and ordered to be entered accordingly. * -X- * * * * * Agreeably to the order of the day, the Senate resumed the consideration of the appli- cation of John Smith, a Senator from the State of Ohio, filed yesterday, as follows: ' ' John Smith, of Ohio, offers his affidavit to the honorable Senate, and requests a reason- able time to procure the testimony therein stated, and the proper means to enable him to produce it." "Whereupon, A motion was made by Mr. Giles that the further consideration of the resolution re- ported by the committee for the expulsion of John Smith from this House be postponed until the — day of next, on which day the Senate will proceed to the final hear- ing of the said John Smith, with such testimony as he shall then offer to them, to show cause why the said resolution should not be adopted by the Senate. Ordered, That this motion be referred to Messrs. Anderson, Giles, Adams, Crawford, and Bayard, to consider and report thereon. The following motion, made by Mr. Bayard, was referred to the above-mentioned committee: "Resolved, That John Smith, of Ohio, having made affidavit of the materiality of wit- nesses now absent, by whom, he states, he will be able to disprove the charges made against him, that he be allowed time till the — day of to obtain the testimony of any witnesses, and to procure any evidence which he may deem material in his defense. ' ' The following motion, made by Mr. Crawford, was referred to the same committee: ' ' Resolved, That the consideration of the resolution for the expulsion of John Smith be postponed, until the — day of next, on which day the Senate will proceed to hear the testimony of such witnesses as may then attend on the part of Mr: Smith, or against him, which will have a tehdency to destroy or support the testimony of Elias Glover, Peter Taylor, and Col. James Taylor." The following motion, made by Mr. Bayard, was also referred to the same coinmittee: "Resolved, That the Senate will allow John Smith, of Ohio, to adduce, in his defense against thef charges made against him, the depositions of any witnesses he may deem material in his defense, and also the testimony of witnesses whom he may bring to the bar of the Senate, and all other evidence which he may deem material." On motion. Ordered, That the affidavit of John Smith, filed on the 13th instant, be referred to the same' committee, to consider and report thereon. [An account of the debate is found on pages 84, 85 of the Annals of Congress referred to in the head-note. ] Saturday, January 16, 1808, Mr. Anderson, from the committee to whom was referred several resolutions which were offered to the consideration of the Senate, ^n the case of John Smith, Senator from the State of Ohio, made report; which was read for consideration. [For report, see proceedings Wednesday, January 30, 1808.] Monday, January 18, 1808. On motion by Mr. Anderson to proceed to the examination of James Taylor, in the case of John Smith, a Senator from the State of Ohio, A motion was made by Mr. Maclay to postpone this motion, and to go into the consid- eration of the report of the committee appointed 27th November to inquire into the con- duct of John Smith, a Senator from the State of Ohio; and it was determined in the negative. On motion by Mr. Anderson, "Resolved, That Col. James Taylor be examined at the bar of the Senate ui the case of John Smith, a Senator from the State of Ohio; that the questions put to Mr. Taylor be reduced to writing and put to him by the President, who shall decide upon the propriety of each question proposed. ' ' James Taylor was called accordingly, and th6 oath was administered to him by the President in the form following: "You solemnly swear that yon will make true answers to such questions as shall be put to you touching the case of John Smith, a Senator from the State of Ohio, now in hearing." ^ On motion by Mr. Anderson, Ordered, ' That the Secretary of the Senate potify John Graham that be is requested to 88 SENATE ELECTION CASES. attend the Senate to give evidence in the caae of John Smith, a Senator from the State of Ohio; And Mr. Graham attended. . „„™i„„ Mr. Smith attended with his counsel, and, after the examination and cross-examina- tion of Mr. Taylor, On motioL the Senate adjourned to 11 o'clock to-morraw morning. , [An account of the debate is found on pages 87-89 of the Annals of Congress referred to in the head-note. ] Tuesday, January 19, 1808. The Senate resumed the examination of the witnesses in the case of John Smith, a Senator from the State of Ohio. Mr. Smith attended with his counsel. James Taylor was again called, examined, and cross-examined. . - ^ ^ On motion by Mr. Adams, Mr. Taylor was requested to file attested copies of extracts of certain letters written by him to the Secretary of State, and read this mommg as part of his testimony. John Graham was called, sworn, and examined. James Taylor was again called and cross-examined. Mr. Pope submitted the following motion for consideration: "Sesolved, That the Secretary of the Senate do issue a subpoena, in the usual form, to cause to be summoned to' appear before the Senate, on the first Monday in March next, Elias Glover, then and there to give testimony in the case of John Smith, a Senator from the State of Ohio, regarding his alleged participation in the conspiracy of Aaron Burr." WednesdaYv January 20, 1808. On motion by Mr. Adams, Mr. Tiffin, a Senator from the State of Ohio, was sworn as a witness in the case of John Smith, Senator from that State, examined and cross-exam- ined. Mr. Smith attended with his counsel. The Senate proceeded to consider the report of the committee to whom was referred several resolutions submitted to the Senate in the case of John Smith, a Senator from the State of Ohio, made on the 16th instant. On motion to amend the report and strike out the words "first day of March next,'' it was determined in the negative — yeas 10, nays 21 . The yeas and nays being required by one-fifth of the Senators present, Those who voted in the aflftrmative are Messrs. Anderson, Condit, Gilman, Kitchel, Maday, Mathewson, Moore, Parker, Robinson, and Smith of Tennessee. Those who voted in the negative are Messrs. Adams, Bayard, Crawford, Franklin, Gail- lard, GUes, Goodrich, Gregg, Hillhouse, Howland, Milledge, Mitchill, Pickering, Pope, Eeed, Smith of Maryland, Smith of New York, Sumter, Thruston, Turner, and White. On motion to adopt the report of the committee, which is as follows: "Beaolved, That on the 1st day of March next the Senate will receive such testimony as John Smith, Senator from the State of Ohio, may then adduce in his defense, and that the Senate will then proceed to the final consideration of the report of the committee appointed on the 27th of November last, to inquire into his conduct as an alleged asso- ciate of Aaron Burr; provided, in case Mr. Smith shall adduce evidence to discredit any witness whose testimony has been made use of against him, that he shall make it appear to the Senate that reasonable notice had been given to the witness so intended to be dis- credited of the time and place appointed for the taking of such evidence, that he was served with a copy of this resolution," It was determined in the afiSrmative^ — yeas 25, naysB. The yeas and nays having been required by one-fifth of the Senators present. Those who voted in the affirmative are Messrs. Adams, Anderson, Bayard, Condit, Crawford, Franklin, GaiUard, Giles, Goodrich, Gregg, Hillhouse, Howland, Kitchel, Milledge, Mitchill, Pickering, Pope, Eeed, Smith of Maryland, Smith of New York, Smith of Tennessee, Sumter, Thruston, Turner, and White. Those who voted in the negative are Messrs. Gilman, Macl:vy, Mathewson, Moore, Par- ker, and Robinson. On motion by Mr. Adams, ''Resolved, That the Secretary of the Senate do procure, from the clerk of the circuit court of the United States for the district of Virginia, certified copies of the papers read in that court on the trial of Aaron Burr, and originally published in the Ohio Gazette under the signature of Querist." ' On motion by Mr. Adams, "Seaolved, That the Secretary of the Senate do procure a file of the newspaper called the Enquirer, edited at Richmond by Thomas Ritchie, for the year 1807,"- JOHN SMITH. 89 The motion by Hi. Pope, tbat the Secretaiy of the Senate issue a snbpcena, was amended as follows: "Mesolved, That the Secretary of the Senate do issue a summons, in the usual form, to cause to be summoned to appear before the Senate, on the first day in March next, Ellas Glover and William McFarland, then and there to give testimony in the case of John Smith, a Senator from the State of Ohio, regarding his alleged participation in the con- spiracy of Aaron Burr." And on the question to agree to this motion as amended, it was determined in the negative — ^yeas 7, nays 23. The yeas and nays having been required by one-fifth of the Senators present. Those who voted in the affirmative are Messrs. Bayard, Goodrich, Hillhouse, Picker- ing, Pope, Smith of Maryland, and White. Those who voted in the negative are Messrs. Adams, Anderson, Bradley, Condit, Craw- ford, Franklin, Gaillard, Giles, Oilman, Gregg, Howland, Kitchel, Maclay, Mathewson, Milledge, Mitchill, Parker, Keed, Eobinson, Smith of New York, Smith of Tennessee, Sumter, and Turner. [An account of the debate is found on pages 90-98 of the Annals of Congress referred to in the head-note.] Monday, January 25, 1808. The President communicated a letter from James Taylor, requesting compensation as a witness in the case of John Smith, of Ohio; which was read. Ordered, That it be referred to Messrs. Adams, Anderson, and Tiffin to report thereon. (The bill passed the Senate the following day.) Tuesday, March 1, 1808. Agreeably to the order of the day, the Senate resumed the consideration of the reso- lution reported by the select committee for the expulsion of John Smith, a Senator from the State of Ohio. Mr. Smith being absent, Mr. Key attended as his counsel. On request by Mr. Key that Mr. Harper be permitted to attend also as counsel on behalf of Mr. Smith, A motion was made by Mr. Bradley that Mr. Harper be admitted as one of the coun- sel of Mr. Smith; and it passed in the affirmative. Whereupon, Mr. Harper attended. The following request was submitted by Mr. Key: "John Smith, of Ohio,. by his counsel, prays the honorable Senate to grant him fur- ther time to produce his testimony and prepare fdr his defense." On .motion by Mr. Tiffin, Ordered, -That the papers directed to the Secretary of the Senate, and which were taken as testimony in the case of John Smith, of Ohio, be referred to a select committee, to examine and report thereon, and that Messrs. Anderson, Adams, and Tiffin be the committee. Wednesday, March2, 1808. Mr. Anderson, from the committee appointed to examine and separate the deposi- tions transmitted in the case of John Smith, a Senator'from the State of Ohio, reported that they had performed that service. Thuesday, March 3, 1808. On motion by Mr. Adams, Ordered, That the consideration of the first report of the committee appointed to inquire into the conduct of John Smith, a Senator from the State of Ohio, as an alleged associate of Aaron Burr, be postponed to Tuesday, the 15th instant. On motion by Mr. Adams, Ordered, That the papers received by the Secreitary of the Senate relating to the case of John Smith, a Senator irom the State of Ohio, be subject to the inspection of his counsel. Feiday, March 4, 1808. The President communicated sundry letters from Elias Glover, referring to deposi- tions inclosed, in the case of John Smith, a Senator from the State of Ohio, and the letters were read. On motion by Mr. Gregg, Ordered, That the counsel on behalf of John Smith, a Senator from the State of Ohio, be authorized to take copies of the depositions in the case, under the direction of the Secretary of the Senate. 90 SENATE ELECTION CASES. Tuesday, March 15, 1808. Agreeably to the order of the day, the Senate resumed the consideration of the first report of the committee appointed to inquire into the conduct of John Smith, a Senator from the State of Ohio, as an alleged associate ,of Aaron Burr. Messrs. Harper and Key, counsel for Mr. Smith, attended. Mr. Harper read a letter from Mr. Smith, requesting further time to enable hii^ to prepare for his defense, and requested, in Mr. Smith's hehalf, aii extension of the time accordingly. Whereupon, ^ On motion by "Mr. Hillhouse that the further consideration of the report ol the com- mittee be postponed to Monday, the 28th of March, it was determined in the negative- yeas 15, nays 17. The yeas and nays having been required by one-flffch of the Senators present. Those who voted in the affirmative are Messrs. Adams, Bayard, Gaillard, Giles, Good- rich, Hillhouse, Howland, Mathewson, Pickering, Pope, Eeed, Smith of New York, Sumter, Thruston, and White. Those who voted in the negative are Messrs. Anderson, Bradley, Condit, Crawford, Franklin, Gilman, Gregg, Kitchel, Maclay, Milledge, Mitchill, Moore, Parker, Robinson, Smith of Maryland, Smith of Teimessee, and Turner. On request by Mr. Key, one of the counsel in behalf of Mr. Smith, of Ohio, and on motion by Mr. Smith, of Maryland, it was agreed that the further consideration of- the report of the committee be postponed until to-morrow. [An account of the debate is found on pages 164-167 of the Annals of Congress re- ferred to in the head-note.] Wednesday, March 16, 1808. The Senate resumed the consideration of the first report of the committee appointed to inquire into the conduct of John Smith, a Senator from the State of Ohio, as an alleged associate of Aaron Burr. Messrs. Harper and Key, counsel on behalf of Mr. Smith, attended. The memorial of the counsel on behalf of Mr. Smith was presented and read, praying the further hearing of this case may be postponed until the first Monday in April next, for reasons stated in the memorial; and On motion by Mr. Bradley that the consideration of the report of the committee be , postponed to the first Monday in April next, the votes of the Senate were equally di- vided — 16 in the affirmative and 16 in the negative, and the President determined the question in the negative. , On motion by Mr. Bayard that the further consideration of the report of the com- mittee be postpoiled to the 1st day of April next, it was determined in the affirmative — yeas 17, nays 15. , The yeas and nays having been required by one-fifth of the Senators present. Those who voted in the affirmative are Mesirs. Adams,, Bayard, Bradley, Gaillard, Giles, Goodrich, Hillhouse, Howland, Mathewson, Milledge, Pickering, Pope, Eeed, Smith of New York, Sumter, Thruston, and White. Those who voted ha the negative are Messrs. Anderson, Condit, Crawford, Franklin, Gilman, Gregg, Kitchel, Maclay, Mitchill, Moore, Parker, Eobinson, Smith of Maryland, Smith of Tennessee, and Turner. [An account of the debate is found on pages 167-170 of the Annals of Congress re- ferred to in the head-note.] Friday, April 1, 1808. The Senate resumed the consideration of the first report of the committee appointed to inquire into the conduct of John Smith, a Senator from the State of Ohio, as an alleged associate of Aaron Burr. On motion by Mr. Anderson, Ordered, That Mr. Smith's Counsel have seats assigned them at the bar of this House. Mr. Harper and Mr. Key, his counsel, attended accordingly. Mr. Key requested the attendance of Messrs, Davenport, Morrow, and Sturgis, mem- bers of the House of Eepresentatives of the United States, to give evidence in the case; also, that a subpoena issue to General Wilkinson to attend for that purpose. Mr. Key proceeded to read certain depositions, taken on behalf of Mr, Smith, and which were objected to as not within the rule; and. On motion, it wJis agreed that the counsel on beh'alf of Mr. Smith should proceed in reading the depositions, the informality notwithstanding; and. After progress, On motion, the Senate adjourned to 10 o'clock to-morrow morning. [An account of the debate is found on pages 178-180 of the Annals of Congress re- ferred to in the bead-note.] JOHN SMITH. 91 Saturday, April 2, 1808. The Senate resumed the consideration of the first report of the committee appointed to inquire into the conduct of John Smith, a Senator from the State of Ohio, as an alleged associate of Aaron Burr. ' Mr. Harper and Mr. Key, his counsel, attended. The following motion was submitted by Mr. Milledge for consideration: " Resolved, That a message be sent to the House of Representatives retiuestiug that Messrs. Sturgis, Davenport, and Jeremiah Morrow, members pf that House, be per- mitted to attend the Senate to give evidence as to the characters of sundry witnesses in the case of John Smith, a Senator from the State of Ohio. ' ' The counsel for Mr. Smith proceeded in reading the depositions taken on his behalf. After which. On motion, it was agreed that the consideration of the report be further postponed. [An account of the debate is found on pages 184, 185 of the Annals of Congress re- ferred to in the head-note.] Monday, April 4, 1808. The Senate resumed the consideration of the first report of the committee appointed to inquire into the conduct of John Smith, a Senator from the State of Ohio, as an alleged associate of Aaron Burr. Mr. Smith attended, together with Messrs. Harper and Key, counsel on his behalf, who proceeded in reading their depositions. The depositions transmitted to the Senate on behalf of Elias Glover were also read; after which it was agreed that the further consideration of the report be postponed until to-morrow. Tuesday, April 5, 1808. The Senate resumed the consideration of the first report of the committee appointed to inquire into the conduct of John Smith, a Senator from the State of Ohio, as an alleged associate of Aaron Burr. * Mr. Smith attended, together with Messrs. Harper and Key, counsel on his behalf, and the counsel proceeded in the further reading of their depositions. On request of Mr. Smith, Mr. Tiffin, of the Senate, Messrs. Van Rensselaer, Jere- miah Morrow, Talmadge, Bacon, and Davenport, of the House of Representatives, were severally sworn, and gave testimony as to the credibility of sundry witnesses whose depositions were read yesterday. Mr. Key proceeded to show cause why the report of the committee should not be adopted, after which it was agreed that the further consideration thereof be postponed until to-morrow. [An account of the debate, with the argument of Mr. Key, is found on pages 186-207 of the Annals of Congress referred to in the head-note. ] Wednesday, April 6, 1808. ' The Senate resumed the consideration of the first report of the committee appointed to inquire into the conduct of John Smith, a Senator from the State of Ohio, as an alleged associate of Aaron Burr. Mr. Smith attended, together with Messrs. Harper and Key, counsel in his behalf. On request of Mr. Smith, Messrs. Gardenier and Russell, of the House of Representa- tives, were severally sworn, and gave testimony as to the credibility of certain witnesses whose depositions were read on the 4th instant; and Mr. Harper proceeded to show cause why the report of the committee should not be adopted. After which, On motion by Mr. Andeisou, it was agreed that the consideration thereof be further postponed. [An account of the debate, with the argument of Mr. Harper, is found on pages 208-234 of the Annals of Congress referred to in the head-note.] Thursday, April 7, 1808. The Senate resumed the consideration of the first report of the cominittee appointed to inquire into the conduct of John Smith, a Senator from the State of Ohio, as an alleged associate of Aaron Burr; and Mr. Smith attended. ' On motion by Mr. Smith, of Maryland, "Resolved, That the President of the United States be requested to lay before this House Matthew Nimmo's letter to him of the 28th November, 1806, and any other letter or letters of the said Nimmo relative to any supposed connection of John Smith, of Ohio, 92 SENATE ELECTION CASES. with the conspiracy of Aaron Bnrr, and also the letter of the said John Smith of Jan- uary, 1807, inclosing the deposition of himself and his son." Ordered, That the Secretary lay this resolution before the President of the United States. On motion by Mr. White, it was agreed that the further consideration of the report be postponed until to-morrow. Feiday, April 8, 1808. The following written message was received from the President of the United States by Mr. Coles, his secretary: To the Senate of the United States : Agreeably to the request of the Senate in their resolution of yesterday I have exam- ined my papers and find no letter from Matthew Nimmo ofthedateof November 28, 1806, nor any other from him of any date but that of January 23, 1807, now transmitted with all the papers in my possession which accompanied it. Nor do I find any letter from John Smith, of Ohio, bearing date at any time in the month of January, 1807. Having delivered to the Attorney-General all the papers respecting the conspiracy of Aaron Burr which came to my hands during or before his prosecution, I might suppose the letters above requested had been delivered to him. But I must add my belief that I never received such letters and the ground of it. I am in the habit of noting daily in the list kept for that purpose the letters I receive daily by the names of the writers and dates pf time and place, and this has been done with such exactness that I do not recollect ever to have detected a single omission. I have carefully examined that list from the 1st of November, 1806, to the last of June, 1807, and I find no note within that period of the receipt of any letter from Matthew Nimmo hut that now transmitted, nor of any one of the date of January, 1807, from John Smith, of Ohio. The letters noted asreceived from him within that period are dated at Washington, February 2, 2, 7, and 21, which I have examined, and find relating to subjects entirely foreign to the objects ' of the resolution of the 7th instant; and others dated at Cincinnati, March 27, April 6, 13, and 17, which not being now in my possession, I presume have related to Burr's conspiracy, and have been delivered to the Attorney-General. I recollect nothing of their particular contents. I must repeat, therefore, my firm belief that the letters of Nimmo of November 28, 1806, and of John Smith of January, 1807, never came to my hands, and that if such were written (and Nimmo's letter expressly mentions his of No- vember 28) they have been intercepted, or otherwise miscarried. TH. JEFFERSON. Apbil 8, 1808. The message and papers referred to were read, and Ordered, To lie for consideration. The Senate resumed the consideration of the first report of the committee appointed to inquire into the conduct of John Smith, a Senator frota the State of Ohio, as an alleged associate of Aaron Burr. On motion by Mr. Franklin, it was agreed to take up the resolution reported by the committee, as follows: '^Besolved, That John Smith, a Senator from the State of Ohio, by his participation in the conspiracy of Aaron Burr against the peace, union, and liberties of the people of the United States has been guilty of conduct incompatible with his duty and station as a Senator of the United States, and that he be therefor, and hereby is, expelled from the Senate of the United States." And, after debate, On motion by Mr. Giles, it was agreed that the further consideration thereof be post' poned until to-morrow. [An account of the debate, with the speech of Mr. Adams, is found on pages 236-265 of the Annals of Congress referred to in the head-note.] Satueday, April 9, 1808. Agreeably to the order of the day the Senate resumed the consideration of the reso- lution reported by the committee appointed on the 7th of November last to consider the subject, to wit: "Besolved, That John Smith, a Senator from the State of Ohio, by his participation in the conspiracy of Aaron Burr against the peace, union, and liberties of the people of the United States has been guilty of conduct incompatible with his duty and station as a Senator of the United States, and that he be therefore, and hereby is, expelled from the Senate of the United States. " And on the question to agree to the resolution, it was determined in the negative, two-thirds of the Senators present not concurring therein— yeas 19, nays 10. JOHN SMITH. 93 Those who voted in the affirmative are Messrs. Adams, Anderson, Condit, Crawford, Franklin, Gaillard, Gilmau, Gregg, Kitchel, Maclay, Mathewson, MUledge, Moore, Eob- inson. Smith of Maryland, Smith of Tennessee, Sumter, Tiffin, and Tumerl Those who voted in the negative are Messrs. Giles, Goodrich, Hillhonse, Howland, Pickering, Pope, Eeed, Smith of New York, Thruston, and White. [Ah account of the debate, with the speech of Mr. Hillhouse, is found on pages 265-324 of the Annals of Congress referred to in the head-note.] 94 SENATE ELECTION OASES. [Eleventh Congress— First session.] STANLEY GEISWOLD, Senator from Ohio from June 2 to December 11, 1809. Stanley Griswold had resided in Ohio from September, 1808, till May 18, 1809, when he was ap- pointed by the governor of that State to fill a vacancy in the United States Senate. It was deter- mined that the term.of residence or other qualifloations necessary to entitle a person to become an inhabitant of the State not beirig defined either by the constitution or laws of the State, the cer- tificate of the governor that a person was a citizen thereof was sufficient for the Senate to proceed upon, he being otherwise entitled thereto. . ». a » . ^ The history of the case here given consists of a transcript of the proecedmgs of the Senate relat- ing to it from the Annals of Congress, 11th Cong., 1st and 2d sess., vol. 1, 1809-;'10, within pages 23-37; together with the report of the committee in the case, copied from the original on file in the office of the Secretary of the Senate. Friday, June 2, 1809. Stanley Griswold, appointed a Senator by the execntive of the State of Ohio to flU the vacancy occasioned by the resignation of Edward Tiffin, was qualified and took his seat. Friday, June 9, 1809. Resolved, That a committee of elections be appointed. Ordered, That Messrs. Hillhonse, Giles, Crawford, Franklin, and Robinson be the committee. On motion by Mr. Hillhouse, Ordered, That the credentials of Stanley Griswold, appointed a Senator by the execu- tive of the State of Ohio, be referred to this committee. Thursday, June 15, 1809. Mr. Hillhouse, from the Committee of Elections, to whom were referred the creden- tials of Stanley Griswold, esq., appointed a Senator of the United States by the execu- tive of the State of Ohio, made report. Whereupon, Resolved, That Stanley Griswold, appointed by the governor of the State of Ohio as a Senator of the United States, to fill the vacancy occasioned by the resignation of Ed- ward Tiffin, is entitled to his seat. EEPOET OF COMMITTEE. Mr. Hillhouse, from the Committee of Elections, to whom was referred the credentials of an appointment by the governor of the State of Ohio of Stanley Griswold as a Senator of the United States, having had the same under consideration, reported: That Edward Tiffin, a Senator for the State of Ohio, resigned his seat since the last session of the legislature of said State, and during their recess. That on the 18th day of May last, and during said recess of said legislature, said Stanley Griswold was ap- pointed by the governor of said State to fill the vacancy occasioned by the resignation aforesaid. That said Stanley Griswold, being a citizen of the United States, removed into the said State of Ohio and has there resided since September last, but the term of residence or other qualifications necessary to entitle a person to become an inhabitant of said State are not, so far as the committee have been able to discover, defined either by the constitution or laws of said State; but the executive who made the appointment having certified that said Stanley Griswold is a citizen of said State, the committee sub- mit the following resolution. [Resolution given above.] JESSE BLEDSOE. 95 [Thirteenth Congress — Third session.] JESSE BLEDSOE, Senatoi from Kentuckrj from March 4, 1813, to December 24, 1814. January 20, 1815, Mr. Bledsoe addressed a letter to the President of the Senate setting forth these facts : That previous to the 24th of the December preceding he had forwar.ded his resignation to the governor of the State to take place on that day, to be by the governor communicated to the leg- islature ; that he had been advised by letter that tlie governor had received the resignation and would hold it up in the hope of hearing from him of a change in his determination on the subject, until about the last of that month, when he (the governor) would communicate it to the legislature ; that newspaper information stated that the governor had done so, and that his successor had been appointed, which latter fact he had been informed was also stated in a letter to a gentleman of the House of Representatives; that he had received no more information. Mr. Bledsoe desired to know whether, under these circumstances, he was to be considered still a member of the Senate. It was determined that the facts stated in the letter to the President of the Senate vacated Mr. 31edsoe's seat, the grounds on which the Senate proceeded not being given. It appears from the Journals of the Senate that Isham Talbot produced credentials of' election to fill Mr. Bledsoe's un- expired term February 2, 1815, and took his seat on the same day. The history of the case here given consists of a transcript of the proceedings of the Senate relating to it from the Annals of Congress, 13th Cong., 1814r-'15, vol. 3, pages 175, 176. Feiday, January 20, 1815. The President laid before the Senate a letter from the Hon. Mr. Bledsoe, as follows: Washington, January 20, 1815. Sie: Doubts having arisen whether I have a right still to fill my seat in the Senate of the United States, with a view to have the question settled and a precedent established, and to save my own feelings on a point of duty, I beg leave, through you, to submit the following case for the decision of that honorable body: PreTious to the 24th December last I forwarded by mail my resignation to the gov- ernor of the State of Kentucky, to take place on that day, to be by him cominunicated to the legislature of that State then and, so far as I am informed, still in session. I was by a letter from the governor of that State advised that he had rdceived my resignation and would hold it up, in the hope of hearing from me and of a change in my determina- tion on that subject, until about the last of that month, when he would communicate it to thfr legislature. Newspaper information states that he did so, and that my successor has been appointed, which latter fact is also stated in a letter to a gentleman of the House of Eepresentatives, as I have been informed. This is all the information I have received. Whether, under these circumstances, I am to be considered as still a member will be for the honorable Senate to decide. Wishing it to be understood I have no other solicitude as to the result than to be informed of my duty, which is concerned in con- tinuing in my place if I have a right to do so, I am, vTith high respect, your most obedient servant, J. BLEDSOE. The Hon.' John Gaillaed, President of the Senate. And the letter was read. Whereupon Mr. JRoberts submitted the following motion: , "Resolved, That the facts stated in the letter of the Hon. Jesse Bledsoe addressed to the President of the Senate do not vacate his seat in the Senate." A motion was made by Mr. King to amend the resolution by striking out therefrom the word "not;" and it was determined in the affirmative — yeas 25, nays 8; as follows; Ye.vs— Messrs. Anderson, Barbour, Brown, Chace, Daggett, Fromentin, Gaillard, German, Giles, Goldsborough, Gore, Horsey, Howell, Hunter, Kerr, King, Lambert, Mason, Morrow, Robinson, Tait, Taylor, Thompson, Wells, and Wharton. Nays — Messrs. Bibb, Condit, Dana, Lacock, Eoberts, Smith, Turner, and Vamum. On the question, Shall the resolution pass as amended? it was determined in the affirmative — yeas 27, nays 6; as follows: Yeas — Messrs. Anderson, Barbour, Brown, Chace, Daggett, Fromentin, Gaillard, Ger- n^an, Giles, Goldsborough, Gore, Horsey, Howell, Hunter, Kerr, King, Lacock, Lambert, Mason, Morrow, Robinson, Tait, Taylor, Thompson, Turner, Wells, and Wharton. Nays — Messrs. Bibb, Condit, Dana, Eoberts, Smith, and Vamum. So it was Resolved, That the facts stated in the letter of the Hon. Jesse Bledsoe addressed to the President of the Senate do vacate his seat in the Senate. 96 SENATE ELECTION CASES. [Twentieth Congress — First session.] EPHEAIM BATEMAN, Senator from New Jersey from December 7, 1826, till January 12, 1829, when he resigned. Mr. Bateman'a first term expired March 3, 1827. February 26, 1827, Ms credentials of election for the succeeding term were presented to the Senate. February 28, 1827, a remonstrance of a number of members of -the general assembly of the State against the legality of the election was communi- cated to the Senate and ordered to lie on Ihe table. December 3, 1827, Mr. Bateman took his seat. May 6, 1828, the remonstrance was referred to a select committee Of five. It was to the efifect that the election ought to be declared null and void for the reason that Mr. Bateman. being chairman of the joint meeting of the two houses of the legislature, had voted for himself. It stated that Theo- dore Frelinghnysen had 28 votes and Mr. Baieman 29, and claimed that Mr. Bateman was elected " by his inirn. vote, without which he neither could nor would have been elected," and that it was '* repugnant to the fundamental principles of our free institutions that the same man, at the same time, should be both candidate and elector." May 22, the committee reported the facts in regard to the election to be as stated in the remonstrance. On a preliminary point discussed, it reported that the Senate was " empowered by the -Constitution to judge of the elections^ returns, and qualifica- tions of its members, and could not therefore be precluded by the' commission emanating from the executive of a State from any inquiry which is necessary to the exercise of that judgment." On the chief point before the committee it reported that Mr. Bateman ■' was a member of the legisla- ture of New Jersey, duly elected, and competent to the exercise of every legislative power not for- bidden by its laws, among which the right to vote in the election of a Senator was one." The com- mittee recommended the adoption of a resolution discharging the committee from the further eon- ^ sideration of the subject, which was agreed to. The history of the case here given consistsof a transcript of the proceedings of the Senate relating to it from the Senate Journals, 2d sess. 19lh Cong., 182tS-'27, and 1st sess. 20th Cong., 1827-'28, with the report of the committee from Senate Documents, Istsess. 20thOong.,vol. 5, Doc. No. 202,pagesl-3. The documents relating to the case which were printed are found in the volume of Senate Doc- uments above referred to. Doc. No. 202, pages 4-21. It appears from Niles* Register, vol. 3J, page 223, that some debate on the subject occurred, in which Messrs. Bateman, Van Buren, and Noble took part; but it is not there reported, nor is It found in the Congressional Debates. Monday, February 26, 1827. Mr. Dickerson communicated the credentials of the Hon. Ephraim Bateman, appointed a Senator by the legislature of the State of New Jersey for the term of six years, to com- mence on the 4th day of March next. Wednesday, February 28, 1827. The Vice-President commtinicated a letter from Samuel J. Bayard, James S. Green, and John E. Thompson, inclosing the remonstrances of a number of the members of the legislative council and general assembly of New Jersey and of a number of citizens of that State against the legality of the election by the legislature of Ephraim Bateman to the Senate of the United States from the 3d of March next; and Ordered, That it lie on the table. Monday, December 3, 1827. The Hon. Ephraim Bateman, appointed a Senator by the legislature of the State of New Jersey for the term of six years commencing on the 4th day of March last, at- tended, and the bath prescribed bylaw was administered to him and he took his seat in the Senate. Tuesday, May 6, 1828. On motion by Mr. Eaton, Resolved, That the remonstrance presented to the Senate at the last session against the legality of the election by the legislature of New Jersey of Ephraim Bateman to the Senate of the United States be referred to a select committee, to consistof five mem- bers, to consider and report thereon. Ordered, That Mr. Berrien, Mr. TazeweU, Mr. McLane, Mr. Seymore, and Mr. San- ford be the committee. Mr. Bateman presented his answer to the remonstrance against his election; and Ordered, That it be referred to the last-mentioned committee. Mr. Eaton laid on the table two papers relating to the subject of said remonstrance; and Ordered, That they be referred to the last-mentioned committee. EPHRAIM BATEMAN. ■ 97 Thursday, May 22, 1828. Mr. Berrien, from the select committee to whom was referred the memorial of sundry citizens of New Jersey touching the election of Ephraim Bateman, a Senator from that State, made a report, accompanied by a request to be discharged from the further con- sideration of the subject; and the committee was discharged accordingly. On motion by Mr. Eaton, Ordered, That the report and the documents connected with it be printed. ekpoet of committee. In Senate of the TTnitbd States. May -22, 1828. Mr. Berrien made the following report; • The select committee to whom was referred the memorial of sundry citizens of New Jersey touching the election of Ephraim Bateman, a Senator from that State, report: That, by a reference to the proceedings of the legislature of New Jersey, assembled in joint meeting on the 9th November, 1826, of which a duly certified copy has been exhib- ited by the memorialists, it appears that an election for a Senator, to represent the said State of New Jersey in the Congress of the United States for six years from the 4th day of March then next ensuing, was on that day held; that Theodore Frelinghuysen, Ephraim Bateman, Thomas Chapman, and George K. Drake were put in nomination for the said appointment; that Ephraim Bateman was at that time a member of the said legisla- ture of New Jersey, vice-president of the council and chairman of the joint meeting; that the names of Thomas Chapman and George K. Drake were with leave respectively withdrawn ; that the said Ephraim Bateman thereafter withdrew from the chair of the joint meeting, and at his instance William B. Ewing, esq., was called to the same; and, on motion, the same was confirmed by the joint meeting; tha*, after some discussion as to the manner of proceeding, the said Ephraim Bateman returned to the assembly room and resumed the chair; that the secretary was thereupon directed to call the joint meeting, which being done, the members votihg vim voce, it appeared that there were for Theodore Frelinghuysen 28 votes and for Ephraim BaAeinan 29 votes, and that the said Ephraim Bateman voted for himself, and was accordingly declared to be duly appointed. It ihofeover appears to the coinmittee that in virtue of such election, and the com- mission of the governor of New Jersey founded thereon, the said Ephraim Bateman now holds his seat in the Seriate of the United States. The memorialists object to the validity of this election, because the said Ephraim Bate- man, being a member of the legislative council, vice-president of the State, and chairman of the joint meeting of the two houses of the legislature, permitted himself to be nomi- nated as a candidate for the office of Senator in Congress of the United States; that he presided as chairman of the joint meeting during the said election; that, before the vote was taken, he made k motion that he should be excused from voting, because he was a candidate, and therefore interested; and, on the question being put on his said motion, voted that he should not be excused, the other members of the joint meeting being equally divided on the same; and that, on the vote for Senator for six years, the joint meeting, without the vote of the said Ephraim Bateman, being again equally divided, he, the said Ephraim Bateman, voted for himself. The transcript of the proceedings of the legislature of New Jersey, which has been exhibited to the committee, does not show what motions were made and decided before the joint meeting proceeded to the election of a Senator; but it does show that on pro- ceeding to that election, the votesof the joint meeting were for Theodore Frelinghuysen 28 and for Ephraim Bateman 29, and that Ephraim Bateman voted for himself. The ques- tion, therefore, which is presented to the consideration of the committee is whether this act invalidates the election. On the preliminary point which is discussed in the argument forwarded in behalf of the memorialists, as well as in that submitted by the respondent, and which relates to the right of the Senate to look behind the commission granted by the governor, the com- mittee cannot p_ermit themselves to entertain a doubt. The Senate is empowered by the Constitution to judge of the elections, returns, and qualifications of its members, and cannot therefore be precluded by the commission emanating from the executive of a State from any inquiry which is necessary to the ex- ercise of that judgment. If this were not so, the governor of a State, by an abuse of his trust, either from misapprehension or design, might assume to himself the appointing power in exclusion of the legislature. The question whether the election of the respondent is invalidated by the fact that he voted for himself, and that without such vote he had not a majority of the votes of the S E -C 7 98 SENATE ELECTION CASES. joint meeting by which he was declared to be elected, is then forced upon the attention of the committee. The foUowingclausesof the Constitution of the United States relate to the manmer- of election: "The Senate of the United States shall be composed of two Senators from each State, who shall he chosen by the legislature thereof. ' ' "The times, places, and manner of holding elections for Senators and Representatives shall be prescribed in each State by the legislature thereof ; but the Congress may at any time by law make or alter such regulations, except as to the places of choosing Sen- ators. ' ' The legislature of New Jersey has enacted the following provision: "Senators of the United 'States on the part of this State shall be appointed by the council and general assembly, in joint meeting assembled, at the place where the legis- lature shall then sit." It is manifest from the aforegoing clauses that Congress may prescribe the mode of elect- ing Senators, and that in the absence of any provision by them it is colnpetent to the legis- latures of the several States to do so. It seems equally clear that each State must pos- sess the power of defining by its organic law the constituents of its own legislative department, of prescribing the qualifications of its members, and the limitations under which the trust confided to them shall be exercised; and that the interest of a member in any subject of legislative action may be declared to constitute, as to that subject, a ground of disqualification to the exercise of his legislative functions by such interested member. But no such provision exists. For aught that appears to the committee the respondent was a member of the legislature of New Jersey duly elected and competent to the exercise of every legislative power not forbidden by its laws, among, which the right to vote in the election of a Senator was one. The committee have not considered the question of the propriety or delicacy of the act complained of by the memorialists as coming within the scope of the reference made to them by the Senate. Nor have they felt themselves at liberty to apply to this question any abstract principles of right or of that system of jurisprudence which, however its principles may have become intermin- gled with our statutory regulations or its rules of proceeding may be seen to operate in the forms which are in use in our judicial tribunals, has no intrinsic validity in those tribunals or in any other forum in the United States. Contenting themselves with this brief view of the subject, it appears to the committee that the facts set forth in the memorial referred to them are not sufficient to invalidate the election of Ephraim Bateman as a Senator of the State of New Jersey in the Con- gress of the United States, under the election had in the joint meeting of the assembly of that State on the 9th day of November, 1826. They therefore recommend the follow- ing resolution: Resolved, That the select committee raised on the remonstrance and petition of svmdry citizens of the State of New Jersey be discharged from the farther consideration of the POTTER VS. EOBBINS. 99 [Twenty-third Congress — First session.] ELISHA E. POTTER vs. ASHEE EOBBINS^ of Rhode Island. February 4, 1833, Mr. Knight, of Ehode Island, presented in the Senate the credentials of Ashef Bobbins, elected a Senator from Bhode Island for the term beginning March 4, 1833, which were read. Mr. Bobbins had been elected January 19, 1833 ; his credentials dated January 28, 1833, De- cember 2, 1833, the first day of the first meeting of Congress in said term, the President of the Sen-* ate communicated an act of the State of Khode Island declaring the election of January 19 void i also credentials of election to the Senate of Elisha R. Potter for the said term. The act had passed in October, 1833. Mr. Potter had been elected November 1, 1833 ; his credentials dated November 5, 1833. After debate on the question whether Mr. Bobbins sl;iould be ad-mitted at onee to the seat to hold until the Senate should have decided to which of the contestants it belonged, it was determined that Mr. Bobbins be admitted to take the oath, which he did December 2, 1833, and the credentials of Mr. Potter were laid on the table. December 5, 1833, the credentials of Mr. Potter "were re- ferred to a select committee of five elected by the Senate ; and December 9 the credentials of Mr. Bobbins were referred to the same committee. Majority and minority reports were made by the committee. The majority reported that the body electing Mr. Bobbins was the legislature of Bhod© Island ; also a resolution " that Asher Bobbins, being duly and constitutionally chosen a Senator in Congress from the State of Bhode Island, is entitled to his seat in the Senate," which resolution passed in the affirmative May 27, 1834, by a vote of 27 yeas to 16 nays. The nainority reported that the choice of Mr. Bobbins was not made by the legislatureof the State; that the terms of the governor and senators forming part of that body had expired in May, 1832, before the election of Mr. Bobbins f that there had bepn no new election by the people ; and that the act passed in January, 1832, by the legislature, providing that in case of a failure at any annual election by the people of the election of a governor, lieutenant-governor, or a quorum of the Senate, such of those officers who should then be incumbents should continue in office until their successors should be duly qualified, under which act the governor and senators referred to were holding office at the time of the election, was in violation of the charter granted to the State in 1633, and was null and void ; and report that Mr. Potter was duly elected. The history of the case here given consists of a transcript of the proceedings of the Senate relat-. ing toit from Senate Journal, 1st sess. 23d Cong., 1833-34 ; the majority report (Beport No, 139, Senate Documents, 1st sess. 23d Cong., vol. 2, l833-'34) : and the minority report (Eeport No. 240, Senate Doc- uments, 1st sess. 23d Cong., vol. 3, 1833-'34), with the exception of certain accompanying documents, which may be found in the volume of Senate Documents containing the report. The debate on the prima facie right of Mr. Bobbins to the seat is found in Congressional Debates, vol. 10, part 1, 1833-'34, jiages 2-11. A debate on the right of the minority to make report, and on the question whether a minority report should be responsive to the majority report, is found in the same volume, pages 804^807, 1229, 1230, 1252-1257. Special references to the other debates are inserted below. The vote on agreeing to the resolution reported by the committee was taken without de- bate. The references here given are all either to the Senate Journal «r to the Congressional Debates (Gales & Seaton). The case is also reported in the Congressional Globe and the Begister of De- bates (Greeni. Monday, February 4, 1833. Mr. Knight communicated the credentials of the Hon. Asher Eobblns, appointed a Senator by the legislature of the State of Ehode Island and Providence Plantations for the term of six years, to commence on the 4th' day of March next; which were read. , Monday, December 2, 1833. The President communicated an act of the general assembly of the State of Ehode Island and Providence Plantations, declaring void the election by the general assembly of that State, on the 19th of January last, of Asher Eobbins to the office of Senator to represent that State in the Senate of the United States for the term of six years from the 3d day of March last; and the certificate of the governor and secretary of that State of the election, by the said general assembly, of Elisha E. Potter to the same office; vrhich act and certificate were read; and. On motion by Mr. Poindexter, Ordered, That they be laid on the table. On motion by Mr. poindexter that the oath prescribed by law be now administerecl to Mr. Eobbins, whose credentials were received at the last session, A motion was made by Mr. Benton that said motion be referred to a select comqiit- tee to consider and report thereon. It wa.s determined in the negative — ^yeas 15, nays 19. [A reference to the debate that took place on the two last motions is given m the head-note, it being pages 3-11 of the references.] On motion by Mr. Benton, the yeas and nays being desired by one-fifth of the mem- bers present, Those who voted in the affirmative are Messrs. Benton, Brown, Grundy, HUl, Kane, King of Alabama, Morris, Eives, Eobinson,, Shepley, TaUmadge, Tipton, White, WU- kins, and Wright. 100 SENATE ELECTION CASES. Those who voted in the negative are Messrs. Bell, Bibb, Chambers, Clay, Evf ing, Fre- linghuysen, Hendricks, Kent, Knight, Mangum, Moore, Naudain, Poindexter, Prentiss, Silsbee, Smith, Swift, Tomlinson, and Tyler. The question recurring on the motion by Mr. Poindexter, " that the oath prescribed bylaw be administered to Mr. Bobbins, " it was determined in the affirmative; and the oath was accordingly administered to Mr. Bobbins and he took his seat in the Senate. Wednesday, December 4, 1833. On motion by Mr. Wright that the proceedings of the legislature of the State of Rhode Island, now upon the table of the Senate, showing the appointment of Elisha E. Potter as a Senator to represent that State in the Senate of the United States, be referred to a select committee of five members, to inquire and report upon the claim of the said Elisha E. Potter to the seat in the Senate now occupied by the Hon. AsherEobbins; and. On motion by Mr. Clay, Ordered, That the said motion be laid on the table. [On Mr. Wright's motion was a brief debate on the method of appointment of select committees, which is found on pages 13, 14 of the volume of Congressional Debatesabove referred to.] Thursday, December 5, 1833. On motion of Mr. Wright the Senate resumed the consideration of the motion sub- mitted by him yesterday, to refer to a select committee the claim of Elisha E. Potter to a seat in the Senate; and it was amended and agreed to, as follows: "Resolved, That the proceedings of the legislature of the State of Ehode Island, now upon the table of the Senate, showing the appointment of Elishat E. Potter as a Sena- tor to represent that State in the Senate of the United States, be referred to a select com- mittee, to be elected by ilie Senate, to inquire and report upon the claim of the said Elisha E. Potter to the seat in the Senate now occupied by the Hon. Asher Eobbins." Ordered, That Mr. Poindexter, Mr. Eives, Mr. Frelinghuysen, Mr. Wright, and Mr. Sprague be the committee. [Some remarks made on this motion of Mr. Wright are found on page 19 of the vol- ume of Congressional Debates above referred to.] Monday, December 9, 1833. On motion by Mr. Poindexter, Ordered, Thait the credentials of Mr. Eobbins be referred to the select committee ap- pointed on the claim of Elisha E. Potter to a seat in the Senate. Tuesday, March 4, 1834. Mr. Poindexter, from the select committee to whom had been referred the credentials of Asher Eobbins, appointed a Senator in Congress from the Statg of Ehode Island for the term of six years, to commence on the 4th day of March, 1833, and the proceedings of the legislature of said State, convened on the last Monday of October, 1833, declaring void the appointment of said Eobbins, and the appointment of Elisha E. Potter for the said term, made a report,* afecompanied by the following resolution: "Resolved, That Asher Eobbins, being duly and constitutionally chosen a Senator in Congress from the State of Ehode Island, is entitled to his seat in the Senate." [Here followed a debate on the right of the minority of the committee to submit a report, a reference to which is given in the head-note, it being pages 804-807 of the ref- erences.] Tuesday, April 1, 1834. On motion by Mr. Wright that he have leave to present to the Senate a paper con- taining the views and opinions of the minority of the select committee to whom had been referred the appointments of Asher Eobbins and Elisha E. Potter, by the State of Ehode Island, to the Senate of the United States. [A reference to the debate on this motion is given in the head-note, it being pages 1229, 1230 of the references. ] On motion by Mr. Ewing, Ordered, That it be laid on the table. Friday, April 4, 1834. On motion by Mr. Wright, the Senate resumed the consideration of his motion to pre- sent to the Senate a paper containing the views and opinions of the minority of the select committee to whom had been referred the appointments of Asher Eobbins and Elisha E. Potter by the legislature of Ehode Island to the Senate of the United States; and, * Found on page 102. ~~ POTTEE VS. KOBBINS. 101 On motion of Mr. Forsyth, Ordered, That it be laid on the table, and that the said paper, with the documents therein referred to, except those marked G, H, and I, be printed. [A reference to the debate lollowing Mr. Wright's motion is given in the head-note, it being pages 1252-1257 of the references. ] [The consideration of the report w:is successively postponed April 10, May 8, May 12, and May 19.] Tuesday, iWay 27, 1834. The Senate resumed the consideration of the report of the select committee on the re- spective claims of Messrs. Robbins and Potter to a seat in the Senate; and, on the ques- tion to concur in the resolution vfith which it concludes, as follows: ' 'Besolved, That Asher Bobbins, being duly and constitutionally chosen a Senator iu Congress from the State of Ehode Island, is entitled to his seat in the Senate," It was determined in the afiirmative — yeas 27, nays 16. On motion of Mr. Wright, the yeas and nays being desired by one-fifth of the Sena- tors present, Those who voted in the affirmative are Messrs Bell, Bibb, Calhoun, Chambers, Clay, Clayion, Ewing, Frelinghuyseu, Hendricks, Kent, Knight, Leigh, McKean, Maugum, Nandain, Poindextei;, Porter, Preston, Silsbee, Smith, Southard, Sprague, Swift, Tip- ton, Tomlinson, Waggaman, and Webster. Those who voted in the negative are Messrs. Benton, Brown, Forsyth, Grundy, Hill, Kane,' King of Alabama, King of Georgia, Linn, Morris, Robiijson, Shepley, Tallmadge, White, Wilkins, and Wright. [Some remarks on the question of proceeding to ii vote without debate are found in the Congressional Debates, vol. 10, part 2, 1833-'34, page 1813.] COMPENSATION OP ME. POTTEE. Tl-IUESDAY, Jwne 5, 1834. The following motion, submitted by Mr. Wright, was considered and agreed to: ' ' Resolved, That the Committee on Finance be instructed to inquire into the justice and expediency of providing by law for the pay and mileageof the Hon. Elisha E. Potter from the commencement of the present session of Congress up to the time of the final decision of the contest for a seat in the Senate between the said Potter and the Hon. Asher Eobbins, at the rate of pay allowed to the members of the Senate." Tuesday, June 10, 1834. On motion of Mr. Webster, Ordered, That the Committee on Finance be discharged from the consideration of the resolution relating to the claim of Elisha R. Potter for mileage and compensation. Feiday, June 12, 1834. The following motion submitted by Mr. Wright was considered: "Whereas the Hon. Elisha R. Potter did at the commencement of the present session of Congress cause to be laid before the Senate a commission from the governor of the State of Ehode Island, duly authenticated, and constituting the regular jjnma /acie evidence to entitle him to a seat in the Senate; and "Whereas the contest for the-seat claimed by Mr. Potter was not finally decided by the Scnatj until I no :i7ch day o±l May now last past, when the s:iiaid the compensation of mileage allowed by law to members of Congress for his travel from his place of residence in the State of Ehode Island to the Capitol, and returning; and also the per diem allowance of a member of Congress for the time he actually attended at the city of Washington during the contest pending before the Senate in relation to the seat claimed by him, and occupied by the Hon. Mr. Bobbins; and that the Judiciary Committee be instructed to prepare a bill or resolution for that purpose.'' On the question to agree to the resolution as amended, it was determined in the af- firmative — yeas 24, nays 22. On motion by Mr. Wright, the yeas and nays being desired by one-fifth of the mem- bers present. Those who voted in the affirmative areMessrs. Benton, Bibb, Brown, Chambers, Grundy, Hendricks, Hill, Kane, King of Alabama, Knight, Linn, McKean, Moore, Morris, Preston, Bobinson, Shepley, Silsbee, Tallmadge, Tyler, Waggaman, White, Wilkins, and Wright. Those who voted in the negative are Messrs. Bell, Black, Clay, Clayton, Ewing, For-^ syth, FrelinghuySen, Kent, King of Georgia, Leigh, Mangum, Naudain, Poindexter, Porter, Prentiss, Smith, Southard, Sprague, Swift, Tipton, Tomlinson, and Webster. [Some remarks on the resolution are found in part 2 of the Congressional Debates already referred to, pages 2037, 2038.] Monday, June 23, 1834. [The Senate having under consideration the bill entitled "An act making appropria- tions tor the civil and diplomatic expenses of Government for the year 1834. "] Pursuant to instruction of a majority of the Committee on the Judiciary, Mr. Clayton moved further to amend the bill by inserting the following section: ' ' Sec. 4. And be it further enacted. That the Secretary of the Senate be, and he hereby is, directed to pay, out of the fund appropriated by law for the pay of members of Congress, to Elisha E. Potter, of the State of Ehode Island, such compensation as is allowed by law to members of Congress, for his travel from his place of residence to the city of Washington to claim a seat in the Senate, and for his return; and also the per diem compensation for the days he was in actual attendance at the seat of Government from the commencement of the present session of Congress until the final decision of the Senate against his right to the seat claimed by him. ' ' It was determined in the afiirmative — yeas 20, nays 19. On motion of Mr. Clayton, the yeas and nays being desired by one-fifth of the mem- bers present, Those who voted in the affirmative are Messrs. Benton, Bibb, Brown, Chambers, Grundy, Hendricks, Hill, Kane, King of Alabama, Knight, Linn, Preston, Eobinson, Shepley, Silsbee, Tallmadge, Tyler, White, Wilkins, and Wright. Those who voted in the negative are Messrs. Black, Clay, Clayton, Ewing, Forsyth, Freliflghuysen, Kent, King of Georgia, Leigh, Mangum, Naudain, Poindexter, Porter, Prentiss, Smith, Southard, Sprague, Tomlinson, andWebster. eepokt of committee. In the Senate of the United States. March 4, 1834.— Ordered to be printed. Mr. Poindexter made the following report: The select committee to which was referred the credentials of Asher Eobbins, chosen a Senator in Congress from the State of Rhode Island for the term of six years to com- mence on the 4th day of March, 1833; and also the proceedings of the legislature of POTTER VS. EOBBINS. 103 said State, convened on the last Monday of October, 1833, declaring the election of the said Asher Eobbins void, who thereupon proceeded to elect Elisha E. Potter a Senator in Congress for six years, to commence on the 4th day of March, 1833, instead of said Asher Eobbins, whose election to fill said of&ce had been declared void as aforesaid, have had the whole subject so referred to them under their serious and attentive considera- tion, and submit the following report: That it appears by the credentials of Asher Eobbins and the proceedings of the general assembly of the State of Ehode Island hereto appended, and marked A, that the senate and house of representatives of said State, then sitting in the city of Providence, met in grand committee in conformity to the usage of the legislature in such cases, for the pur- pose of choosing a Senator to represent said State in the Congress of the United States; -and that, on counting the ballots, it appeared that Mr. Eobbins was elected by a majority of four votes, who was thereupon declared to be duly elected a Senator to represent said State in the Congress of the United States for six years irom and after the 4th day of March then next following; that, having performed the duty for which the two houses had met, the grand committee was dissolved, and the members of each house repaired to their respective chambers. It further appears to your committee that on the 28th day ■of the same month of January his excellency Lemuel H. Arnold, governor of the State of Ehode Island, by commission in due form, bearing his signature, under the great .seal of the State, did proclaim and make known the election of the said Asher Eobbins as aforesaid, and caused the said commission, signed and sealed as aforesaid, to be de- livered to the said Asher Eobbins, which was presented to the Senate of the United States in open session on the 4th day of February, 1833, and on motion read and entered on the journals of the Senate. By virtue of the force and effect of the aforesaid commis- sion, the said Asher Eobbins, Senator-elefit from the State of Ehode Island, appeared in the Senate Chamber on the 2d day of December, 1833, was duly sworn to support the Constitution of the United States, and took his seat as a member of the Senate. It further appears to your committee that at a subsequent session of the general assem- bly of Ehode Island, begun and held at the town of South Kingston in said State, on the last Monday of October, 1833, certain proceedings were had relative to the election of the said Asher Eobbins as above mentioned, which resulted in the adoption of a dec- laration or act of the said general assembly, by which the election of Mr. Eobbins is declared to be "null and void and of no effect," and the office vacated. Whereupon, at the same session of the general assembly the two houses met in grand committee on the 1st day of November, 1833, and proceeded to elect a Senator to represent the State of Ehode Island in the Congress of the United States for the term of six years, commenc- ing on the 4th day of March" preceding, to supply the vacancy created, or supposed to be created, by the act declaring the election of Mr. Eobbins null and void; and the ma- jority appearing to be in favor of Elisha E. Potter, the said Potter was thereupon de- clared to be duly elected a Senator in Congressfrom thesaid State for the term aforesaid, when the grand committee w^;;s dissolved and the momber.i repaired to their respective chambers. That on the 5th day of the same month of November his excellency John Brown Francis, governor of the State of Ehode Island, by commission in due form, bear- ing his signature, under the great seal of the State, did proclaim and make known the election of the said Elisha E. Potter as aforesaid, and cause the said commission, signed and sealed as aforesaid, to be delivered to the said Elisha E. Potter, which was presented to the Senate on the 2d day of December last, and on the 5th day of the same month referred to this committee. The documents relating to those proceedings are subjoined and marked B. This statement of the case is deemed sufficient to show the questions which arise for th'e consideration of your committee, and which they now proceed to -examine: 1. Was the commission of xVsher Eobbina.made and executed ia conformity with the provisions of the Constitution of the United States, and the laws and usages of Ehode Island prescribing the time, place, and manner of choosing Senators to Congress? 2. Was Mr. Eobbins, at the time of his election, eligible, according to the Constitution of the United States, to the office" of Senator? 3. Was he chosen by the legislaturn of the State of Ehode Island? If these questions be answered affirmatively it will be unnecessary to inquire into the -validity of the subsequent election of Mr. Potter, or into the power of the legislature to create a vacancy by annulling the act of their predecessors: and therefore your com- mittee limit the views which they deem it proper to take of the subject referred to them ■to the objections made to the commission of Mr. Eobbins on the ground that the legis- lature by whom he was chosen had no power to elect a Senator to Congress, and that the governor who signed and sealed his commission was not at the time competent to exercise any power or perform any duty in his official character. These objections rest on the same general principle; and if they are supported by the facts disclosed in the <;ase, connected with the constitution and laws of the State, it will then be proper to ■examine the claims of Mr. Potter to a seat in the Senate, and not otherwise. 104 SENATE ELECTION CASES. The Constitution of the United States provides that ''each house shall be the judge of the elections, returns, and qualifications of its own members." (Article 1, section 5.) The members of the House of Representatives are to be chosen by the people of the several States having the qualifications requisite for electors of the most numerous branch of the State legislature. The members of the Senate are to be chosen by the legislatures of each State, and the times, places, and manner of holding elections for Sen- ators and Representatives shall be prescribed in each State by the legislature thereof; but the Congress may at any time, by law, make or alter such regulations, except as to the places of choosing Senators. Congress having passed no law on the subject, we must look into the statutes of the several States for those regulations and conform op action to them. The Senators from each State are equal in number, and cannot be increased or dimiuished even by an amendment of the Constitution without the consent of the States respectively. They are chosen by the States as political sovereignties, without regard to their representative population, and form the Federal branch of the National Legislature. The same body of men which possesses the powers of legislation in each State is alone competent to appoint Senators to Congress for the term prescribed in the Constitution. In the performance of this duty the State acts in its highest sovereign capacity, and the causes which would render the election of a Senator void must be such as would destroy the validity of all laws enacted by the body by which tbe Senator was chosen. Other causes might exist to render the election voidable, and these are enumer- ated in the Constitution, beyond which the Senate cannot interpose its authority to disturb or control the sovereign powers of the States vested in their legislatures by the Constitu- tion of the United States. We might inquire, was the person elected thirty years of age at the time of his election? Had he been nine years a citizen of the United States? Was he at the time of his election a citizen of »the State for which he sha]l have been chosen ? Was the election held at the time and place directed by the laws of the State ? These are facts capable of clear demonstration by proofs, and in the absence of the requi- .site qualifications in either of the specified cases, or if the existing laws, of the State regulating the time and place for holding the election were violated, the Senate, acting under the power to judge of "the elections, returns, and qualifications of its own mem- bers," might adjudge the commission of the person elected void, although in all other respects it was legal and constitutional. But where the sovereign will of the State is made known through its legislature, and consummated by its proper official function- aries in due form, it would be a dangerous exertion of power to look behind the commis- sion for defects in the component parts of the legislature, or into the peculiar organization of the body for reasons to justify the Senate in declaring its acts absolutely null and void. Such a power; if carried to its legitimate extent, would subject the entire scope of State legislation to be overruled by our decision, and even the right of suffrage of in- dividual members of the legislature whose elections were contested might be set aside. It would also lead to investigations into the motives of members in casting their votes, for the purpose of establishing a charge of bribery or corruption in particular cases. These matters, your committee think, properly belong to the tribunals of the State, and canriot constitute the basis on which the Senate could, without an infringement of State .sovereignty, claim the right to declare the election of a Senator void who possessed the requisite qualifications and was chosen according to the forms of law and the Constitution. These general views are offered to show that contested elections in the popular branch of Congress, where the people exert in their primary capacity the right of suffrage under various limitations and restrictions in the choice of I'epresentatives from certain pre- scribed districts, open a much wider field of inquiry and investigation than a like con- test for a seat in the Senate, which is a body wholly federative in its character and organization and whose members hold their appointments from and represent the States as political sovereignties. Your committee having regard to these rules as applicable to all contested elections in the Senate, proceed to apply them to the case now under consideration. It is admitted that the sitting member, Asher Eobbins, possesses all the qualifications required by the Constitution of the United States to be a Senator in Congress, and that his commission as such is in due form according to the laws and usages of Rhode Island. These points being conceded, the remaining and the only question to be decided is, was the body by which he was chosen a Senator the legislatiire of Rhode Island? or was it merely an assemblage of citizens without authority to pass laws prescribing that which is right and prohibiting that which is wrong to the people of the State ? On this ground both parties seem content to rest their claims to a seat in the Senate. The general assembly of Rhode Island, as at present organized, consists of two sepa- rate and distinct branches: The senate, over which body the governor presides, and the house of repre?entatives — each chosen by the people of the State who are freemen or freeholders and entitled to vote at elections. The governor and senate are elected aij- nually; the members of the house of representatives, semi-annually. To constitute a POTTER VS. EOBBINS. 105 legislature capable of enacting laws or performing any other duty confided to that body by the constitution of the State or of the United States it is essential that there should be in existence at the same time a governor or some officer authorized to perform the executive functions, a senate, and a house of representatives. In the absence of either the other branches could not perform any act which would be obligatory on the people of the State. We are then brought to the inquiry whether these component- parts of the legislature of Rhode' Island were assembled at Providence in January, 1833, when Mr. Robbins was elected in grand committee a Senator to Congress? It is alleged on the one hand that the governor and senate had ceased to exist in the month of May, 1832, by the expiration of the term of one year for which they had been elected and the failure of the people to elect their successors by a majority of all the votes given in, ac- cording to the constitution and laws of the State. On the other, it is maintained that the powers of the governor and senate were by law extended until their isuccessors should be duly chosen and engaged, for which purpose special elections were ordered and held, but without success, prior to the time at which Mr. Bobbins was elected. For the pur- pose of forming a correct j udgment of this anomaly in the constitution of the State it is. necessary to recur to the ancient charter of Charles II, of England, granted to the col- ony of Rhode Island and Providence Plantations in 1663, which has not been superseded by a written constitution since the Revolution, and to the various laws which have beeu enacted modifying the provisions of that charter in such manner as to adapt it to the condition and convenience of the people of the State. By the charter certain political powers, rights, and privileges are granted to the inhabitants of the colony, among which are the following: ' 'And further, we will and ordain, and by these presents, for us, our heirs and suc- cessors, do declare and appoint that, for the better ordering and managing of the affairs of the said company and their successors, there shall be one governor, one deputy gov- ernor, and ten assistants, to be from time to time constituted, elected, and chosen, out of the freemen of the said company for the time being, in such manner and form as is here- after in tiiese presents expressed; which said officers shall apply themselves to talse care for the best disposing and ordering of the general business and affairs of and concerning the lands and hereditaments hereinafter mentioned to be granted, and the plantation thereof, and the government of the people there." — Charter ofB. I., page 6, Digestl822. "And that forever hereafter, twice in every year, that is to say, on every first Wednes- day in the month of May, and on every last Wednesday in October, or oftener in case it shall be requisite, the assistants, and such of the freemen of the said company, not ex- ceeding six persons for Newport, four persons for each of the respective towns of Provi- dence, Portsmouth, and Warwick, and two persons for each other place, town, or city, who shall be from time to time thereunto elected or deputed by the major part of the freemen of the respective towns or places for which they shall be so elected or deputed, shall have a general meeting or assembly, then and there to consult, advise, and deter- mine in and about the affairs and business of the said company and plantations. And further, we do, of our especial grace, certain Itnowledge, and mere motion, give and grant, unto the said governor and company of the English colony of Rhode Island and Provi- dence Plantations in New England, in America, and their successors, that the governor, or, in his absence, and by his permission, the deputy governor of tlie said company for the time being, the assistants, and such of the freemen of the said company as shall be so as aforesaid elected or deputed, or so many of them as shall be present at such meet- ing or assembly as afor^aid, shall be called the general assembly; and that they, or the greatest part of them then present, whereof the governor or deputy governor and six of the assistants, at least to be seven, shall have, and hereby have, given and granted uuto- them full power and authority from time to time, and at all times hereafter, to appoint, alter, and change such days, times, and places of meeting and general assembly as they- Bhall think fit, &c." * * « "And from time to time to make, ordain, constitute, or repeal such laws, statutes, orders, and ordinances, forms and ceremonies of government and magistracy, as to them shall seem meet for the good and welfare of the said company, and for the government and ordering of the lands and hereditaments hereinafter mentioned to be granted, and of the people that do, or at any time hereafter shall, inhabit or be within the same, so as such laws, ordinances, and constitutions so made be not contrary and repugnant unto, but as near as may be agreeable to the laws of this our realm of England, considering the nature and constitution of the place and people there. " — Digest of 1822, pages 6, 7, 8 of Charter. "And further, our will and pleasure is, and we do hereby for us, our heirs and suc- cessors, establish and ordain that yearly, once in the year forever hereafter, namely, the aforesaid Wednesday in May, and at the town of Newport, or elsewhere, if urgent occa- sion do require, the governor, deputy governor, and assistants of the said company, and other officers of the said company, or such of them as the general assembly shall think 106 ' SENATE ELECTION CASES. ifit, shall be in the said general court or assembly to be held from that day or time, newly •chosen for the year ensuing by such greater part of said company for the time being as -shall he then and there present."— Digest of 1823, page 9 oftlw Charier. These extracts from the charter will serve to show the original structure of the gov- ernment of Ehode Island and Providence Plantations. The charter provides that the -governor, deputy governor, and assistants shall be chosen annually on the first Wednes- day of Maiy in each and every year by a majority of the company at Newport. The deputies to the general assembly were to be chosen in the several towns for which they were elected semi-annually, and to assemble on the first Wednesday in May and the last Wednesday in October, or oltener, in case it should be requisite, at such place as might bedesignated by law. The governor, deputy governor, assistants, and deputies, as or- ganized under the charter, formed one body, which is called the general assembly. The unlimited power granted to this body to repeal or modify the existing regulations for the government of the colony, or to adopt such new regjulations as might be deemed expedient for the convenience of the people, has been exercised from time to time before -and since the Revolution, when Ehode Island became one of the States of the Union. These modifications have materially changed the provisions of the charter, and estab- lished fundamental principles of.government inconsistent with those recognized and or- dained by the charter, which now remains only the nominal Ibundation of the legisla- tion of the Stated Your committee think it necessary to present a summary of these interpolations on the charter, as they furnish a practical illustration of the powers ■claimed and exercised in this respect by the general assembly of Ehode Island, the va^ lidity of which does not seem to have been at any time questioned: 1. By the last clause of the charter above cited the election of governor, deputy gov- ernor, and assistants is required to be made at Newport on the first Wednesday of May in each year by the whole body of the freemen of the company assembled at that place in person. This is the literal requirement of the charter, and was made, we presume, in conformity to analogous customs in England and Wales in the elections for counties and boroughs. The difBlcnlty of convening the freemen from the difierent towns of the ■colony at the season indicated, and the expense and inconvenience attending their assem- blage at Newport lor an uncertain length of time until an election could be efiected, very speedily suggested a modification of this requirement. As early as October 26, 1664, a, little more than one year after the reception of the charter, after stating the incon- veniences attending a personal voting at Newport, the general assembly ordained that "voting by proxces be enjoyed by all the freemen of this collony, and that each freeman desiering to vote by proxy shall subscribe their names on the outside, and deliver his votts sealed up into the hands of a majestrate in the face of a towne metting lawfully called, and notice given for that porpose * * * which sayd votts shall be by such whome the General Assembly shall appoynt, opened and delivered forth as the respective choice of the several votts shall requier; provided that this order shall noe way pr^u- dice or discorradge any who desier to be personally present. ' ' — Ancient Beeords, page 256. This palpable departure from the original provisions of the charter continued to be the law of Ehode Island for nearly a century, viz, until August, 1760, when a different ar- rangement was substituted, but stillmore manifestly departing from the literal require- ments of that instrument. 2. As stated in our remarks immediately following the passages of the charter above cited, the general assembly of the colony was constituted into one body, consisting of a governor, deputy governor, and ten assistants,, and so many dep|ities elected from the freemen of the several towns as are specifically stated in the second of those quotations. This single body was invested with all the powers, legislative and judicial, which the ■clauses of the charter enumerate, and acted as a single body, determining its acts by a majority of voices for the three successive years subsequent to its creation by charter. In March 27, 1666, at the suggestion of the towns of Portsmouth and Warwick, an adt passed the general assembly ' ' concerning deputies sitting apart. ' ' After stating the in- conveniences of a single assembly, they enact and declare that "it is freely agreed that the request of the towns aforesaid be granted, and ordered that the magestrates" (gov- ernor, deputy governor, and assistants) ' ' sitt by themselves, and the deputies by them- selves ; and that each house soe sitting have equal power and priviledge in the proposing, composing, and propogattingany act, order, and law in generall assembly, and that nether house in generall assembly shall have power, without the concurrance of the majour pirt of the other house, to make any law or order to be accounted as an aote of the generall assembly." — Ancient Beeords, page 298. This law of the assembly of 1666, and not the charter, is the whole basis of the pres- ent organization of the legislature of Ehode Island, which consists, as we have before stated, as at present constituted, of two branches — a senate and a house of representa- tives, each armed with a negative upon the other. 3. The act of August, 1 760, is another and remarkable departure from the literal require- ments of the charter of King Charles. By the charter itself the whole body of freemen POTTER VS. ROBBINS. 107 of the colony were to assemble, in person, at Newport, and to elect, by a major vote of the company, the governor, deputy governor, and assistants. The law of October, 1664, relaxed this provision and substituted a'mixed system of voting for these officers, partly in person and partly by proxy. This continued to be in force until the session of the general assembly in August, 1760, when a law was passed entitled ' ' An act regulating the general election." In the preamble to this act it is set forth "that it is found, by long experience, the freemen going to Newport to put in their votes for general officers •at the elections is very injurious to the interest and public weal of the colony; * * * .iind that all the ends of voting may be as fully attained by the freemen's putting in their proxy votes at the town meeting in their owu towns, appointed by law for that purpose, agreeable to the ancient and laudable custom of most of the prudent freemen: Therefore, ' ' Be it enacted, That; for the future, every freeman who is disposed to give his suffrage at the election of general officers in this colony shall do it by putting in a proxy vote in the town meeting m ike town to which he belongs, on the third Wednesday of April next pre- ceding the general election, agreeable to the law andwell-knowncustomof proxing; and no freeman shall be permitted to vote for general officers at the general election held at Newport, on the first Wednesday in May, but only such as be members of the general assembly." Thus, by this act of the legislature, the whole system of voting laid down by the charter is radically altere'd. The assembling of the freemen of the colony at Newport 'on the first Wednesday in May, as the charter prescribes, is entirely abrogated; the mixed method of voting, partly in person and partly by proxies sent to Newport from the other towns of the colony, is also modified; and the whole system is changed to the law as it now stands, with very slight variations, viz, that the freemen, on the third Wednesday of April in each year, in their several towns, shall proceed to elect a governor, deputy governor, and assistants, and not in one body assembled in Newport, on the first Wednesday in May. The law of 1760 was deficient in one important particular, which the act of January, 1832 (the particular act now complained of), was intended to rehiedy. Formerly, and from the reception of the charter until August, 1760, a failure to elect general officers was a contingency not to be apprehended, because the freemeji assembled at Newport would continue assembled and voting until a choice were effected. But by the act of August, 1760, the freemen were to vote in separate towns, and the votes thusj given hav- ing been transmitted to Newport, were counted in the presence of the governor and as- sistants of the former year, in convention with the deputies then recently elected. If it appeared, on counting, that there was no choice by the major part of the freemen, there was no provision in this act for a second trial for these offices in the separate towns; and the body of the freemen not being assembled in Newport, it was impossible to go-on in the ancient method and continue to vote till the choice was consummated. If the re- quirements of the charter, and the usages under it, had been strictly complied with, the body of the freemen would have appeared at Newport, the governor and assistants of the former year would have presided in the election, and the voting would have gone on until an election were completed. The act of August, 1760, having changed this arrangement in the manner above stated, all that the act of January, 1832, did was to follow out its provisions, and to declare that the governor and assistants of the former year should hold over, while other trials were had in the separate towns, and until an election of general officers was effected by those trials, exactly as they would have held over if the election had been made by the bod^ of the freemen assembled at Newport. But of the character of this act your committee will sp^ak more particularly hereafter. 4. Your committee will barely advert to two other acts of the legislature of Rhode Island which conflict more or less with the provisions of the charter, but whose validity they believe has never been disputed; such as the act devolving the powers and duties of governor on a person who had never been elected by the freemen to that office, in certain cases; also, the act authorizing the governor, in certain events, to appoint times and places of the meeting of the general assembly, aUhough the charter provides that the as- sembly itself shall appoint such times and places; both these acts being embodied in " the act to provide foir the performance of the duties of the governor in certain cases, and also for regulating the sitting of the general assembly." — Ditjiest of 1822, page 99. One other act of the general assembly deserves notice in this connection, as illustrating in a striking manner the peculiar character of legislation in Rhode I.sland. The bill of rights, which in all other States emanates from the people in their primary capacity, in this State is incorporate into its code of statutes in the form of an act declaratory of the rights of the people. The foregoing review of the innovations made from time to timeduring theexistence both of the colonial andState governments of Rhode Island on the provisions of the char- ter conferring on the people political rights demonstrates the power claimed and exer- 108 SENATE ELECTION CASES. cised by the general assembly to alter or modify, without restraint, the fundamental principles of the form of government transmitted to them by the King of Great Britain. This power has never been denied either in reference to its validity or extent. The right of suffrage has been extended to a class of citizens who did not enjoy it under the char- ter; the elections directed to be held at Newport on the first Wednesday of May in each year are held throughout the State on such days and at such places as are provided tor bylaw; the manner of holding and conducting elections and of returning the votes is changed; the general assembly is divided into two separate branches, each having a neg- ative on the action of the other, contrary to the charter, by which it is constituted into one body; a bill of rights, which properly belongs to the constitutions of the several States as a part of the fundamental law, has been given to the people of Rhode Island by a simple act of legislation. These, and mainy other primary principles, are to be found in the code ofstatute law of that State, whileof theancientcharterthere seems to bescarcely a vestige remaining untouched, except that clause which prohibits the enactment of any law contrary to the laws of England, and this became obsolete by virtue of the Revolution. The people of the State have ratified all these changes, not only by their silent acqui- escence, but by their positive sanction. The power to make them was necessary to the welfare of the people, and was wisely reserved in the precise words of the charter. Your committee can perceive nothing intheact of January, 1832, entitled "An act in addition toan act entitled 'Anact regulating the manner of admitting freemen, and directing the method of electing officers in this State,' " which assumes a power dilferent in its charac- ter from that which had been previously recognized as appertaining to the general assem- bly. The necessity of proper precautions to prevent an interregnum in the government of the State was seen and duly considered by the legislature. They believedit to be not only possible but highly probable that the people might fail at the regular annual elec- tion to choose a governor, lieutenant-governor, and a sufi&cient number of senators to form a constitutional quorom for the transaction of business. The result proves that this apprehension was well founded. The first section of the act declares that in case there be no choice of a governor at an annual election the house of representatives shall order a new election for the choice of a governor, and that in case no. choice should then be made, that the order shall be renewed as often as the votes are returned to the general as- sembly until a governor be elected, or until such proceedings shall become unnecessary by reason of the provisi(Tn of law for the next annual election; and in the mean time that the governor of the preceding year shall continue, under his former engagement, to exercise all the powers and perform and execute all the functions or duties of the office of governor until another shall be elected and engaged in his place; and shall receivesuch pro- portion of the salary as corresponds with the time he shall so serve. The same provisions are madeas to the lieutenant-governor andalltheothergeneral officers, in case of a like fail- irre to. elect those officers at the annual election. The third section of the act relates to the choice of senators (assistants), and directs that new elections shall be ordered as in the cases above' mentioned and with the same limitations, unless six senators, being the requisite number to form a quorum, shall have been chosen at the annual election. The contingencies intended to be provided against by this act actually occurred. No gov- ernor nor lieutenant- governor was chosen to succeed those of the past year; the number of senators required for a quorum were not elected by the people; and, in compliance with the provisions of the act, new elections were ordered by the housfe of representatives wheire a failure to elect had happened, until in the judgment of that house " such proceedings had become unnecessary by reason of the provision of law for the next annual election." The general assembly, in the mean time, as at that time constituted, continued to per- form all the functions which properly belong to that body until the end of the session at Providence, January, 1833. It remains then to be inquired, was this body so assem- bled the legislature of Rhode Island? The law by virtue pf which they continued to ex- ercise the powers of legislation is said to be repugnant to the charter, and therefore void. If this be a sound objection it at once annuls every part of their proceedings, and as a nec- essary consequence, that of choosing a Senator in Congress. Your committee are unable to find any clause in the charter which forbids the exer- cise of suchapower as that claimedbythepassageoftheactof January, 1832. It seems, on the contrary, to have been the intention of the crown to perpetuate the existence of the legislative power in the colony by an express provision— that theauthority, office, and power of the governor, deputy governor, and assistants shall cease and determine when -their successors shall be elected and engaged, and not at the expiration of the term for which they were respectively chosen. The construction of this clause of the charter has been uniform from the commencement of the government up to the present time. The governor, deputy governor, and senators (assistants) of the preceding year, at the opening of each annual session of the legislature in May, take their seats, and join the house of representatives in grand committee and continue to act untiltheir successors are engaged. This is abundantly sufficient to prove that they hold over, as a matter of course POTTER VS. EOBBINS. 109 for the purpose of organizing the members newly elected to succeed them; and it does not seem to be material whether the time required for the performance of this duty be one or more days; for the same principle under which they hold over for a single day would apply to a longer time if it should be required to complete the organization. But it is not necessary to resort to this provision of the charter, or to the practice under it, to estab- lish the validity of the power to pass the act of January, 1832. The general power given in the charterto the legislature, "from time totimetomake, ordain, constitute, orrepeal such laws, statutes, orders and ordinances, forms and ceremonies of government and magis- tracy as to them shall seem meet, ' ' without limitation, is broad enough to cover the whole ground assumed in justification of that act. If Rhode Island had followed the example of her sister States of the Union, and adopted a written constitution, it will not be denied that this power to continue in existence the legislative body until their successors should be chosen and engaged might have been given in that instrument. Shall we then deny to her the right to effect the same object by law when the people have, by a long and unin- terrupted acquiescence in that mod e of fixing the fundamental principles of the government, imparted to such laws the force and efficiency of a constitutional provision emanating from a convention chosen for that special purpose? Your committee hold it to be an undeni- able principle, applicable to all forms of government, that there must exist in the supreme legislative power of the State a capacity to preserve itself from annihilation. Waiving, therefore, all the considerations arising out of the charter and the immemorial usage of the State, which might be safely relied upon to justify the act in question, there are other grounds on which the exercise of the power claimed may be sustained and vindi- cated. The constitutions of the several States are, in the broadest sense, popular, ema- nating directly from the people, and subject to be modified and amended as the people may think proper. The legislative power embraces every object without distinction which is not expressly prohibited by a declaration of rights or an article of the Constitu- tion. The structure of the State governments differs in this important respect from the vernfir, and ei(;ht senators elected in 1831, and whose' of- ficial terms, according to all previoiis practice of the government, expired on that day, continued to act us the governor, lieutenant-governor, and senators of the State until the first Wednesday in May, 1 833, j ust two years from the time of their last elect/ m and POTTEE VS. bobbins; 117 qualification for their respective offices, there having been, in the mean time, between the first Wednesday in May, 183Z, and the first Wednesday in May, 1833, five several elections ibr the choice of persons to fill these offices, the first four of which were special, and held in obedience to a provision contained in tha act of January, 183:i, before re- ferred to and hereto annexed, and were all unsuccessful; and thefifth was the regular an- nual election tor 1833, held on the third Wednesday in April in that year, in obedience to the general election law of the State, when un election was made of a governor, lieu- tenant-governor, and eight senators, who took the oaths of office and entered upon the du- ties on the first Wednesday in May, 1833. (See the statements of the parties annexed. ) During the whole of this period, from the first Wednesday in May, 1832, to the first Wednesday In May, 1833, the house of representatives of the legislature of the State of IJhode Island was in regular organization, and composed of members regularly elected at the ordinary times and in the ordinary manner of electing members to that branch of the legislature of the State, according to the established laws. (See the statements of the parties annexed.) On the first Wednesday in May, 1832, the Hon. Asher Eobbins was a Senator in the Congress of the United States from the State of Rhode Island, and his olUcial term was to expire on the 3d day of March, 1833; and, by a law of the State, its Senators in the Congress of the United States are to "be appointed at the session of the general assem- bly next preceding the expiration of the term of service of the Senator for the time being, and not before." (See Digest of 1822, page 107,, section G.) In January, 1833, the body claiming to be the senateof the State of Rhode Island, and acting as such, consisting of the governor, lieutenant governor, and eightsenators, elected on the third Wednesday in April, 1831, and who tooii their oaths of office and entered upon their official duties on the first Wednesday of May, 1831, and the house of repre- sentatives of the State, regularly elected and qualified, being assembled, and acting as the legislature of the State, met in grand committee, and voted for a Senator to repre- sent the State of Rhode Island in the Senate of the Congress of the United StatesNbr the term of six years Irom the 4th day of March then next following, when the term of Mr. Robbins would have expired. Upon counting the votes so given by the persons assum- ing to be the governor, lieutenant-governor, and senators of the State, and by the members of the house of representatives of the State present and voting, it was found that Asher Robbins hud received a majority of the whole number of votes given; where- upon Tie was declared ±0 be elected. (See the statements of the parties annexed.) Pursuant to this proceeding, the person then assuming to be the governor of the State of Rhode Island, and acting as such, did, on the 28th day of January then instant, un- der his hand and the seal of the State, execute and deliver to Mr. Robbins a commission in the ordinary form, according to the laws and practice of the government of the State, _for the office of Senator to represent the State in the Senate of the United States for the term of six years, to commence on the 4tli day of March thereafter. The validity of this election of Mr. Eobbins to this office is contested upon the ground that the persons acting as the governor, lieutenant-governor, and senators of the State, and, as sujh, voting fora Senator at the tima Mr. Eobbins's election was made, were elected on the first Wednesday in May, 1831, ''for the year ensuing," and for no longer term; that, upon counting the proxies, and pronouncing the result of the election for governor, lieutenant-governor, and senators, on the first Wednesday in May, 1832, these officers he- caaie functus officii, so far as related to their election in 1831, whatever that result might be; and that the legislature of the State had not the power to continue their official terms, or official existence, beyond the limits fixed in the charter, of "the year ensuing" their election by the people; and the act of January, 1832, so faras it attempts to perpet- uate these officers, without a re election by the freemen of the State, is pronounced to be contrary to the provisions of the charter, and therefore void. Upon the other side, it is contended, first, that by the charter i*self the offices, pow- ers, and duties of these officers do not cease and determine until others are elected in their places; and, second, that the legislature of Rhode Island have, with the acquiescence of the people of that State, passed many laws in contravention of the charter; that the practice of the government, as shown by its legislation, proves that the charter has not been held to be the fundamental law of the State, except as to certain specific grants; and that the act of January, 1832, does not conflict with those grants, and is therefore a valid act in all its parts. In view of this part of the controversy, the discussion of the following questions ap- pears to be called fjr: - First. Is the charter before mentioned, granted by Charles II of England to the colony of Rhode Island and the Providence Plantations, to be now considered to any, and, if to any, to what extent as the constitution of government of the State of Rhode Island, and as a constitution binding upon the legislature of that State? Second. Does that charter fix and prescribe the term of office of the governor, lieti- tenant-governor, and senators of that State ? 118 SENATE ELECTION CASES. Third. Can the legislature of that State, consistently with the powers granted to that' body by the charter, extend the official terms of those officers beyond the limit fixed by the charter ? Fourth. Can the Senate of the United States, when these questions are presented to it , by the action of the legislature of the State of Rhode Island, in the purported election of a member for this body, look into, and pronounce its opinion upon them, by way of* inquiry into the rights of a sitting member to the seat he occupies ? That the charter of 1663 is, to some extent, to be considered as the fundamental law of the State of Rhode Island, and, as such, binding upon, and restrictive of, the legisla- tive power of that State, is admitted by all, and has not been made a question before the committee. The extent to which it is to be so considered is a point upon which not only the parties before the committee, but the members of the committee themselves, disagree. This proint, therefore, must be settled bysuch references to the history of the legislation and practices of the government and people of the State as have been laid before the committee, and by the inference^ which that history shall be found to justify. The undersigned will, in the first instance, offer to the Senate some of the evidences which have operated most strongly upon his mind to show the tenacity with which the pedple, the government, and the legislature of that State have adhered to the charter in its inconvenient and unjust requirements; going most clearly, in his judgment, to show the strong, binding force which has been allowed to it up to this very dny ; and, having done this,, he wilj review, as concisely as the importance of the subject will allow, the instances cited by the majority of the committee to show that the legislature have not regarded the charter as binding upon, or restrictive of, their powers when the public interests or the public convenience conflicted with its provisions. First. The charter fixes the standard of representation for the towns of the State in the popular branch of the legislature by giving to the town of Newport six represent- atives, to the towns of Providence, Portsmouth, and Warwick four representatives each; and to each other "place, town, or city " in the State, two representatives, wholly with- out regard to population, property, or any other basis upon which representation is usually settled. By the census taken in 1830, in obedience to an act of Congress, the town of Newport, with six representatives, had a population of 8,010 souls, while the town of Providence, with four representatives, had a population of 16,833 souls; thus showing Providence with more than double the population of Newport,- and with but two-thirds of its representation in the popular branch of the legislature. The town of Portsmouth has a population of 1 , 127 souls, a little more than one-sixteeuth of the popu- lation of Providence, and a representation exactly equal to it. The town of Smithfield has a populatian of 0, 857 souls, and two representatives, and the town of Jamestown has a. population of 415 souls, and two representatives — equal to the representation of Smithfield. The whole county of Newport has a population of 16,535 souls, and twenty representatives, while the single town of Providence, with but four representatives, has a population of 16,833 souls. These are some of the instances of the greatest disparity, but the statement annexed, marked N, will show the names and population and repre- sentation of all the towns in the State, and, in a condensed form, the population and representation of each county in the State. StUl, the legislature of Rhode Island have never attempted to equalize the representation of the State, because the charter has been held to be the fundamental law upon the subject, and to restrain its powers in this par- ticular. Second. Elections of members to the popular branch of the legislature of the State have continued to be made semi-annually, because such was the requirement of the charter; and to comply with this provision of that instrument, and with the custom of the government under it, the legislature is regularly convened four times in each year. Still no attempt has been made by the legislature, though the State is small and the business of legislation for it not extensive, to alter the forms of the government in this ' respect. The charter has been held to be paramount to its authority, and to control its action, and the action of the people of the State, in this patticular. Third. A maijority of all the votes given at any election by the people has been held to be required to elect any officer of the State government, because the charter requires such majority to constitute an election; and notwithstanding that the present contro- versy hiia grown wholly out of that requirement, the legislature of the State has never assumed that it had the power to dispense with the rule, and to authorize the election of those officers by a less number of votes than a majority of all the votes given for the office to be filled. Here again the charter has been, and still is, to be held fundamental law. Fourth. From the granting of the charter in 1663 to the present time, with the single exception now in dispute, the governor, lieutenant-governor, and senators of the State have been elected annually, and have entered upon the duties of their respective offices on the first Wednesday in May in each jew; the time prescribed by the charter; have POTTER VS. EOBBINS. 119 held their offices and discharged the duties thereof for one year, and no longer, without a re-election. In repeated instances vancancies have existed dn the Senate in conse- quence of a failure to elect, hy a majority of all the votes given, persons to fill all the places in that body; and those places have, without an exception, until the first Wed- nesday in May, 1832, remained vacant for the year; nor was the idea ever suggested that - the incumbents of the former year could continue to hold them, or that they could be otherwise filled than by an election by the freemen of the State. Until the act of Jan- uary, 183'i, the charter had ever been considered the fundamental law of the State upon this subject, and paramount to any authority existing in the legislature. Fifth. The mode of conducting elections of the general officers of the Statfr, and the plan of voting by proxy, before detailed, is considered by the undersigned as an evidence of the strongest character to prove the rigidity with which the people and the legislature of Khode Island have adhered to the charter to the utmost extentof the spirit of even its mi- nute provisions. The charter was granted when the colony was small, and the extentof territory inhabited was very limited. Indeed, it is fair to presume that New^port, Provi- dence, Portsmonth, and Warwick were all the towns then containing a population of freemen, as those are the only towns named in the distribution of the representation of the colony. The population of the colony, too, must have been very small, and there- fore the charter was framed under the contemplation that the annual elections could be conveniently held at one point, and that all the ireemen could conveniently assemble and vote at the same poll. The practice of a very few years exhibited the inconvenience of this arrangement, and a law was passed presenting to the choice of every voter the al- ternative of attending the poll at Newport jn person or of sending his written vote in the tbrm and manner prescribed by the law. This mode of voting was continued with- out material alteration for nearly a century, and until the year 1760. Then the system was introduced of holding a poll in each town and of requiring the freemen to deposit their proxies there for the general officers, that being, for all purposes material to this argu- ment, the same system which now prevails, and which has prevailed from the year 1760 to the present time. It is true that the votes are deposited in a ballot-box in each town, but it is also true that every vote is indorsed by the full name of the freeman who gives it, written upon the back of the ballot; that all the ballots, together with accurate poll- lists of the persons voting, are carefully sealed up at the closing of these polls; that they are in that state put into the hands of a member of the legislature, whose duty it is to deliver them, unopened, in the general assembly atNewport, at the time and plstCe when and where, by the charter, the election of the officers voted for is required to be made; that the votes are there opened and counted, and the result ascertained and pronounced in all respects in strict conformity with the requirements of the charter, except that each freeman, instead of attending in person, has sent his written ballot indorsed with his full name, and expressing his free choice. This, in the common parlance of the people of the State, is the election; and the undersigned cannot but consider it a rigid regard to, and strict fulfillment of, the provisions of the charter in their spirit and beneficial meaning, furnishing the highest evidence of the great extent to which the people and the legislature of that State have observed that instrument as their fundamental law and constitution of government. Sixth. At the January session of the legislature of Shode Island, in the year 1824, a law was passed to provide for calling a convention to form a constitution of government for the State. The members of the convention were chosen at the annual election on the third Wednesday of April in that year, and assembled at Newport in June follow- ing, and entered upon the discharge of the duties assigned to them. They formed a consti- tution, which was submitted to the people of the State for their adoption or rejection at town meetings holden on the second Monday of October, 1824. The constitution so formed differed widely, in many respects, from the provisions of the charter, and it was rejected by the people of the State by a vote of only 1,668 for to 3,206 against it, thus command- ~ing the approbation of but a trifle more than one-third of the persons voting. It is, from the nature of the case, impossible to say upon what particular grounds this strong rejec- tion was made; but it cannot be improper to remark that the constitution so rejected contained, among other provisions varying from those of the charter, the following: "The supreme executive power of this state shall be vested in a governor, who shall be chosen by the electors properly qualified, and shall hold his office for the term of one year from the first Tuesday in May next succeeding his election, and until his successor be duly qualified. But if no person shaU have a majority of votes, the senate and house of repre- sentatives, in joint committee, shall choosea governor, by ballot, from the two persons having the highest number of votes. ' ' Here is a departure from the provisions of the charter in two important particulars: First, that the governor in office shall continue to hold " until his successor be duly qual- ified;" and, second, that incase of a failure bythe people to elect bya majority of all the votes given, the legislature might fill the vacancy. It is freely conceded that the extent 120 SENATE ELECTION CASES. to which this provision influenced the decision of the people can never be known, and must ever remain mere matter of opinion; but it is believed that the decisive rejection of this constitution may be properly assumed as a strong evidence of their unyielding attachment to the charter with all its imperfections; and that it would be doing great violence and injustice to the patriotism and intelligence of the people of Uhode Island to suppose that this action on their part took place while they believed that they were without a written constitution of government and wholly dependent for their funda^ mental law upon the will and pleasure of their legislative bodies. Seventh. The result of the election in the State of Rhode Island in 1833, after one y«ar of experience under the act of January, 1832, the repeal of that law by the new legislature as one of its first acts; the election again of a new house of representatives in August, 1833; the passage of the act declaring Mr. Robbins's appointment void, in Oc- tober; 1833, and the 'appointment of Mr. Potter to represent the State in the Senate of the UniteA States are considered strong evidences that the act of January, 1832, was held by the people of the State to be a violation of the charter, an usurpation of power on thepaitof the legislature which passed it, and calculated to retain in office menwhom they had not elected and did not approve. Such are the evidences offered to show that the charter has been and is considered by the legislature, the government, and the people of Rhode Island as their fundamental law and constitution of government, to some extent not only, but to the fall extent of all its material provisions, except so far as those provisions have been rendered obsolete by the American Revolution and the consequent change of that people from the condi- tion of colonists to that of citizens of a free State. The majority of the committee entertain a different view upon this subject from that here expressed, and the importance of the question, as well as a proper respect for the opinions of his colleagues upon the committee who differ with him, make it the duty of the undersigned to notice the grounds upon which they rest the conclusion to which they liave come. The majority of the committee seem to consider that the power con- ferred by the charter upon the legislature of the colony " from time to time to make, ordain, constitute, or repeal such' laws, statutes, orders, and ordinances, forms, and ceremonies of, government and magistracy as to them shall seem meet for the good and welfare of the said company, and for the government and ordering of the lands and hereditaments hereinafter mentioned to be granted, and of the people that do, or at any time hereafter shall, inhabit or be within the same, so as such laws, ordinances, and con- stitutions, so made, be not contrary and repugnant unto, but, as near as may be, agree- . able to the laws of this our realm of England, considering the nature and coiistitution of the place and people there," grants a power to that body to make laws at variance from, and in contravention of, the provisions of the charter, if such laws "to them shall seem meet for the good and welfare of the said company. ' ' This power, they say, ' ' has been exercised from time to time before and since the Revolution, when Rhode Island became one of the States of the Uiiion. These modifications have materially changed the pro- visions of the charter, and established fundamental principles of government inconsist- ent with those recognized and ordained by the charter, which now remains only the nominal foundation of the legislation of the State. ' ' The undersigned is unable to assent to the construction which the majority of the com- mittee seem thus to have put upon the clause of the charter above given. He supposes it to be an invariable rule for the construction of every deed or other instrument, and of every law or ordinance, that each part shall be so construed as to make it, to the great- est possible extent, harmonize with, and not be destructive of, any other part or portion of the same deed, instrument, law, or ordinance. The charter of Charles II to the colony of Rhode Island was designed as a system of civil government tor the colony; it was a grant from the sovereign to a portion of his subjects for that purpose; it con- stituted certain offices, and prescribed the powers and the duties in a general manner which should pertain to them. These offices, it will be seen by an examination of the charter, were to constitute the legislature of the colony, and the officers who should All them were to be the legislators of the colony. To this legislature very broad powers are granted by the charter, and the'clause now un^ler consideration is oneamong rhe clauses enumerating those powers. Other clauses give other powers, such as to elect and con- stitute "offices and officers," to grant commissions, "to appoint, order, and direct, erect and settle such places and courts of jurisdiction for the hearing and determining of all actions, cases, matters, and things happening within the said colony and plantation, and which shall be in dispute and depending there; " "to distinguish and set forth the sev- eral names and titles, duties, powers, and limits, of each court, office, and officer, superior and inferior;" to contrive and appoint forms of oaths and attestations; " to regulate and order the way and manner of all elections to offices and places of trust;" to limit afld distinguish the numbers and bounds of all places, towns, and cities, which may have "the power of electing and sending of he«smen tp the general assemblj'; " to direct fipd au- POTTER VS. BOBBINS. 121 thorizetheimposiDg of fines, mulcts, imprisonments,' and executing other punishments, pecuniary and corporeal; "to alter, revoke, annul, or pardon, under their common seal, or otherwise, such fines, mulcts, imprisonments, sentences, judgments, and condemna- tions," with many other powers. Now it is respectfully suggested and urged that the power "to make, ordain, constitute, or repeal such laws, statutes, orders, andordinances, formsand ceremonies of government and magistracy, as to them shall seem meet," granted to the legislature of the colony by theclause of the charter under consideration, should be understood as applicable to the powers and duties above enumerated, and to all the other powers and duties granted and assigned by the charter to the legislature, aud not as con- ferring powers above and beyond the charter which makes the grant. This construction will make the clause in question act in- aid of the charter and of the objects designed to be accomplished by it, while the other construction will make all the remaining portions of the charter entirely contingent and wholly dependent npon what .shall "seem meet" to the legislature. It will also present the singular anomaly of a legislative body stand- ing upon the charter as a constitution of government from which it derives its existence, its constitution, its organization and being as a legislative body, and claiming a power, granted in that charter itself, to subvert the whole instrument. Such a construction will not surely he given to this instrument when a different and at least equally natural one presents itself, which will not make the instrument a felo.de se, but will make each part harmonize with the whole, and further the purposes which the whole was intended to ac- complish. But the undersigned respectfully suggests his belief that the majority of the committee are mistaken in the extent to whict they seem to suppose the acts of the legislature of Rhode Island have conflicted with the provisions of the cliarter. And that he may make his views upon this point intelligible to the Senate, he will notice, as briefly as he is able, the instances, in their order, wherein the majority think the infractions upon the char- ter consist. The first is the permission granted by the legislature of the colony to the freemen of the colony as early as 1664, one year after the granting of the charter, to send to Newport a sealed ballot, expressing the choice of each freeman sending it, for the general officers of the colony, instead of compelling each freeman to attend at Newport in person to express that choice; the ballot so sent being required to be sealed up, and to have the full name of the voter written upon its back, to make^it a legal ballot. As the undersigned has al- ready expressed his conviction thatthislaw was not a violation of the charter, but a full compliance with it in its spirit and meaning, no further remarks will be required here, the same point being again raised under the third enumeration by the majority of ihe committee of the infringements by .the legislature upon the provisions of the charter. The second is the separation of the legislative body of the colony into two houses, each exercising equal legislative powers, and each possessing a negative upon the other, when acting legislatively. This separation took place in the year 1666, about three years after the granting of the charter. It was undoubtedly the contemplation of the charter, as the undersigned construesits language, thatthegovernor, lieutenant-governor, assistants, and deputies should sit together in one body, but it is not seen that the separation by which the governor, lieutencnt-governor, and assistants should form one body (now the senate), and the deputies should form another body (now the house of representatives) necessarily constituted any violation of the charter in its spirit and meaning. The members were all to be elected by the people, and at the periods required by the charter, notwith- standing the separation. The same persons were to constitute tlie legislature of the colony, whether acting together as one body, or separately as two branches of the same legislature. The only effect, therefore, of the separation would be to restrict the legis- lative power by giving the body, small in numbers, a negative, in all cases as. to legisla- tive acts, upon the more- numerous body or house. This could not form a subject of complaint on the part of the crown which was one party to the charter, because the efiect was to limit the exercise of that portion of sovereignty which hud been granted to, the colony, and not to extend it. It might havelbrmedthe subject of complaiut to the people, in case it had operated as such an embarrassment upon the legislaiive^jower as to injure the public interests; but when we find that the measure was taken upon the suggestion of two of the most populous towns of the colony, and predicated upon the in- conveniences of a single assembly for legislative purposes; that it was adi.pted after three years only of practice under the contemplation of the charter of a single house; and that it has, from that time to the present, received the acquiescence and approba- tion of the people, the undersigned reppectlully submits that this change may be well considered one of those "formsand ceremonies of government and ma^itistracy " which, to the legislature, might well." seem meet," and which that iDody might well consider within its powers under the charter "for the good and welliire of the said company," and not as theexerciseof a power either above or beyond the specific grants made by the charter. 122 SENATE ELECTION CASES. The third is the law of 1760, requiring polls to be held in the different towns and all the freemen to vote by proxy, and to deposit their proxies, indorsed in writing with their full proper names, in the ballot-boxes at those polls. This law, in all material par- ticulars, established the system of voting which prevails to this day in the State of Ehode Island, and the Question is, does this system constitute a violation of the charter of such a character as to authorize the assumption that the people of that State have ceased to consider it the fundamental law of their State government? The undersigned.is com- pelled to say that he does not so considerit; and his reasons for this conclusion are: 1st. That the violation complained of relates solely to a privilege granted to the free- men of the colony by the charter, the exercise of which, either in person or by proxy, must concern them alone, and could not afford to the crown any cause of complaint, whatever might have beea the mode of its exercise, so long as that mode only proposed to effect an election by the choice of the freemen of the colony of the officers directed by the charter, and at the times and for the terms fixed by the charter. 2d. That a continuance of the mode of election contemplated by the charter, of as- sembling all the freemen at the same place on the same day, and having them all then vote at the same poll, had, from the increase and extension of the population of the colony, become impressible in practice. 3d. That the change of form, was avowedly adopted ' ' for the good and welfare of the said company," and to the legislature did "seem meet," because the expression of the choice of the freeman made by his written ballot, designating the name of each person for whom he chose to vote, and the office which he designed each person "voted for by him should lill, identified by the indorsement of his full proper name upon the back thereof, and sent to Newport under seali was securing to that freeman as perfect an ex:. ercise of his privilegeof voting as if he had gone to Newport to deposit that same ballot there. 4th. That for these causes the legislature well considered this change one of those "forms and ceremonies of government and magistracy " that they might "make, ordain, constitute, or repeal, for the good and welfare of the saidcompany," without any viola- tion of the spirit and meaning of the charter. 5th. That the only possible cause of complaint which could grow out of this change in the form of voting was the failure, upon the ballot, to make a choice of the officers to be voted for by a majority of all the votes given for each office, and that, such failure was only an event, when it should happen, to operate to the inconvenience of those free- men for whose convenience the system of voting by proxy was adopted. 6tli. That the system of voting adopted by the act of 1760, and, in all substantial par- ticulars, yet maintained, is the least departure from the literal and technical require- ments of the charter which could be devised if the personal attendance'of the freemen of the whole State at Newport on the same day, to vote at the same poll, is to be dis- pensed with ; and therefore goes far to exhibit a determination on the part of the legis- lature and the people to conform to the strict language of the charter so far as that can be done in the present state of the territory and population over which the authority of the charter is held to be binding. The fourth infringement enumerated by the majority of the committee grows out of an act of the legislature of the State of Ehode Island entitled "An act to provide for the performance of the duties of governor in certain cases, and also for regulating tlie sitting of the genera] assembly." (SeeDigestof 1822, page99.) By reference to the book here referred to, it will be perceived that this act also, in some form, was passed as early as 1G63. The majority of the committee find in this act what they consider two material departures by the legislative power from the provisions of the chartel-. The first is found in the first section of the act which devolves the duties of governor upon the lieu^ tenant-governor in case the office of governor shall be vacant ' ' by reason of no election being made by the freemen, or by the governor's death or resignation, or in case of his absence from the State, or inability to perform the duties and functions of his office; " and in case of a vacancy, for similar reasons, of both the offices of governor and lieu- tenant-governor, the duties are devolved upon ' ' the senior senator in rank for the time being." To determine how far this act may be assumed as an infringemetit upon the provisions of the charter, or a departure from them, those provisions, so far as the office and duties of the governor and deputy governor are concerned, should be examined; and the undersigned feels confident that such examination will not result in any necessary violation of, or departure from, the charter, to any extent whatever. The charter, in all cases, in speaking of the powers and duties of tide governor, iises this or similar lan- guage: "And in his absence the deputy governor ; " thus showing that the deputy gov- ernor, in case of the absence of the governor, whether occasioned by a vacancy in the office or otherwise, is to stand in his place and discharge his duties. It will be further seen that the governor, or, in his absence, the deputy governor, is constituted the presiding p(ficer of the seqate, and of the grand committee ■when the two houses are acting toi POTTEE VS. EOBBINS. 123 gether as one body. Now, a vacancy may exist in both these offices at the same time, or during the absence of one a vacancy may be produced in the other. Still the senate, it in session, would require a presiding officer, and this law provides for the case. If a vacancy be occasioned in the office of governor, lieutenant-governor, or senator by death or removal from office, the legislature can fill the vacancy; but if vacancies for these causes should be produced in both the offices of governor and lieutenant-governor at the same time, the senate and grand committee would require a presiding officerand the State a person to do this duty until an election could be made by the legislature. The first section of this act is not understood to go any further than to make this provision, as the proviso would seem to negative the idea that this pro tempore governor can sign com- missions, which is believed to be the only remaining important duty to be performed by the governor of the State. This, therefore, is liot perceived to be an infringement of the charter in the sense in which it is used by the majority of the committee. The senator upon whom the duty is devolved in case the double contingency should happen must have been elected by the people as a member of the body over which he is to preside, and it is believed that by a fair implication from the charter itself the senate without this law would have had the right in the absence of both the governor aiid lieutenant- governor to have designated one of their body to preside over their deliberations. The provision contained in the second section of the law authorizing the governor, or the person empowered to perform the duties of governor, to convene the legislature ' ' when any emergent occasion shall require, ' ' and when the law shall not have provided for a meeting, forms the second ground assumed by the majority of the committee un- der this head. This provision, it is believed, instead of being a violation of or a de- parture from the charter, is expressly authorized by it. At pages 6 and 7 of the charter (see Digest of 1822 of the laws of Rhode Island) will be found the following provision: ''And further, we will and, by these presents for us, our heirs and successors, do or- dain and grant that the governor of thesaid company for the time being; or in his absence by occasion of sickness or otherwise, by his leave and permission, the deputy governor for the time being, shall and may from time to time upon all occasions give order for the assembling of the said company and calling them together to consult and advise of the business and affairs of the said company. ' ' Upon looking at the language of the charter it will be seen that its language when speaking of the legislature is most frequently " the governor, deputy governor, assist- ants, and company," and hence the conclusion is that the authority conferred in the above paragraph is to convene the legislature and not the whole body of the freemen of the whole colony, as the charter makes it the especial duty of the legislature and not of the whole body of the freemen " to consult and advise of the business and affairs of the said company." But if this view of this ytSint be mistaken and the authority " to ap- point times and places of the meeting of the general assembly " be, as the majority of the committee suppose, given to that body only, still it would appear to the undersigned not to be a usurpation of this legislative authority to fix those times and places so far as human foresight could measure the necessity of such meetings while the legislature should be together, and to provide that in case urgent occasion should require during any recess the governor should convene them. He cannot, therefore, view this provision in the legislation of the State as going at all to sanction the position for which it is re- ferred to, that the legislature have not regarded the charter as the fundamental law of the State. * The majority of the committee draw an argument in favor of the power in the legis- lature of Ehode Island to pass laws fundamental in their character because that legisla- ture has passed an act entitled "An act declaratory of, certain rights of the people of this State," commonly called a bill of rights. They say that this bill "in all the other States emanates from the people in their primary capacity," while in Ehode Island it is a mere act of the legislature. The undersigned believes it to be true that most if not all of the States at the formation of their respective constitutions have either incorporated into that instrument or have accompanied it by a bill or declaration of rights which in the one shape or the other has received the approbation of the people in their primary assemblies, but he also believes that no State has presented to or had adopted by its free- men a bill or declaration of rights previous to the time of the formation of a State consti- tution for suchState. He farther believes that most if notall of the old States had bills of rights passed by their respective legislative assemblies prior to the time of the Revolu- tion, and that those bills of rights remained with legislative sanction and authority only until the States respectively formed constitutions, and in or with them submitted to their people for their adoption their bills of rights. He therefore supposes that the majority of the committee in this instance reason from an analogy which does not exist, inasmuch as the State of Ehode Island has never yet formed a constitution, but remains in this respect as it was at the close of the Revolution, and with the same bill of rights and same form of government. But even if this argument should be allowed its full force it would 124 SENATE ELECTION CASES. not seem to the undersigned to prove anything.asto the question under discussion. This bill of rights contains nothing which conflicts with any provision of the charier, and it would be one thing to determine that the legislature of Khode Islandpossesses the power to pass laws in their character fundamental in cases where no such laws exist, and an entirely different thing to determine that that body possesses the power to pass such- laws in contravention of the provisions of the charter, that being, so far as its provisions extend, the fundamental law of the State. The majority of the committee further say in an enumeration of what they consider legislative infringements upon the charter, "the right of suffrage has been extended to a class of citizens who did not enjoy it under the charter. ' ' The undersigned presumes the majority of the committee are right in the fiiet stated, though his acquaintance with the laws of the State does not enable him to speak other than from the statement in the report; but an examination of the charter will show that this subject is expressly put v*-ithin the enumerated powers of the legislature, and that therefore any extension of the right of suffrage by that body cannot bo an infringement upon their chartered rights. Theincorporatingclauseof thecharter, after naming certain individuals, is in the follow- ing language: "And all such others as now are or hereafter shall be admitted and made free of the company and society of our colony of Providence Plantations, in the Narra- gansett Bay, in New England, shall be from time to time and forever hereafter a body corporate and politic in fact and name by the name of the Governor and Company of the English Colony of Ehode Island and Providence Plantations, in New England, in Amer- ica. ' ' (See Charter, page 5, Digest of 1822. ) Among the enumerated powers of the legislature is the following: "And to choose, nominate, and appoint such, and so many, other persons as they shall think fit, and shall be willing to accept the same, to be free of the said company and body politic, and them into the said company to admit." No extension, therefore, by the legislature of the right of suffrage to classes of citizens who did not possess that right at the time of the adoption of the charter could be an infringement upon that instrument, as it grants to the legislature this power, in express terms, to be used as it "shall think fit." This closes the notice which the undersigned proposes to take of the legislative in- fringements upon the charter mentioned and relied upon by the majority of the com- mittee to show that the legislature of Ehode Island does not, and has not fqr a long time, considered it as fundamental law binding its action; but there is one consideration equally applicable to all these alleged legislative encroachments, which ought not to be withheld. It is that the previous review, as well as the statements made' by the ma- jority of the committee, show that they all took place before the American Revolution, " and while the State was u British colony. The charter, therefore, was then strictly and legally binding, for it was a grant by deed from the sovereign to his subjects, and they could take no rights under the charter which it did not grant, and exercise no powers derived from it in a manner different from that which it pointed out. The au- thorities and people of the colony were then one party to the charter and the sovereign was the other; and holding their aulhority, as they all did, by virtue of the charter, any act of those authorities which was in violation of it must have been legally void. It surely would not have been permitted to the colonists, while British subjects, to say, we have disobeyed and violated the chartei"; we have legislated above and beyond it; we have established a government not at all in conibrmity to its provisions; we have introduced a mode of elections which it does not authorize; we have organized a legis- lature upon principles contrary to its requirements, and which does not acknowledge its binding force, but sets up its acts as paramount to your charter; therefore we do not hold it to be the fundamental law of the colony. Still the most material of the legis- lative acts mentioned and relied upon to show that the charter has not been held to control the action of the legislative body organized under it were passed within three years after the date of the charter, and more than a century before those to whom it was granted ceased to be the subjects of the crown from which the grant was made. Can stronger evidence be required to show that these acts were nevtr considered as vio- lations of the spirit and meaning of the charter, either by the sovereign who granted or by the people who accepted and adopted it as their system of civil government? It would seem to the undersigned that this view of the subject must be conclusive against the interpretation given to these acts by the majority of the committee. Ho cannot, therelbre, in any light in which he has been able to view the question, believe there is evidence to authorize the assumption that this charter of Charles II has not ever been, and is not now, considered by the people of Rhode Island as their constitution of gov- ernment to the full extent of its provisions in their true spirit and meaning, with the single exception of those portions of it which were made obsolete by the American Rev- olution. On the contrary, the evidences are clear and strong to his mind to show that it has ever been held to be the fundamental law of that State by its people, its govern- ment, and its legislature (the act of January, 1832, alone forming a material exception), POTTER VS. EOBBINS. 125 and lie refers to the presettt basis of representation in tlie popnlar branch of the legis- lature, and to the present mode of conducting the elections lor general oflS.cers, as con- clusive of the question. This brings the undersigned to hLs second inqniry, to wit: Does the charter fix and prescribe the term of office of the governor, lieutenant-governor, and senators of the State? The language of the charter itself must settle this point. The whole of the paragraph has been quoted in the statement of facts given in the early part of this report, and a reference to that extract will show its requirement to be, ".that yearly, once in ike year, for ever hereafter, namely, the aforesaid Wednesday in May," "the governor, deputy governor, and assistants of the said company," "shall be" "newly clmsen for the year ensuing. " It iS respectfully submitted that this language is definite and clear ; that the term of one year is fixed by it as the period of service, or oflcial term, of the governor, lieutenant-governor, and senators of Rhode Island, by virtue of an election by the people to those offices, and that it does not admit of extension by any lair construction of the terms used or the meaning conveyed. Is there,. then, anything in the charter to modify _ this construction of this provision? The majority of the committee seem to suppose there is, as in reference to this subject they use the following language: "It seems, on the contra*?, to have been the intention of the crown to perpetuate the existence of the legislative power in the colony by an express provision that the authority, office, and power ol the governor, deputy governor, and assistants shall cease and determine when their successors shall be elected and engaged, and not at the expiration of the term for which they were respectively chosen." The undersigned believes, had the majority of the committee extracted the pas-sage of the charter to which they must have referred for the above opinion that they would have seen its want of applicability to the question they were discussing. The passage is considered as solely applicable to cases of removal from these offices by death or lor cause, and not to vacancies ociasioned in any other manner. As, however, the majority of the committee have seemed to consider it as susceptible of a different construction, the undersigned feels bound to gi"ve it to the Senate, that it may form its own opinion of its extent and application. It is in the following words: "And if it shall happen that the present governor, deputy governor,' and assistants, by these presents appointed, or any such as shall hereafter be newly chosen into their rooms, or any of them, or any other the officers of the said company shall die, or be re- moved from his or their several offices, or places before the said general day of election (whom we do hereby declare, for any misdemeanor or default, to be removable by the governor, assistants, and company, or such greater part of them, in any of the said pub- lic courts to be assembled as albresaid), that then, and in every stuck case, it shall and may be lawful to and for the said governor, deputy governor, assistants, and compan.y afore- said, or such greater part of them, so to be assembled as is aforesaid, in any of their as- semblies, to proceed to a new election of one or more of their company, in the room or place, rooms or places, of such officer or officers, so dying or removed, according to their discretions; and immediately upon and after such election or elections made of such governor, deputy governor, assistant, or assistants, or any other officer of the said com- pany, in manner and form aforesaid, the authority, office, and power before given to the former governor, deputy governor, and other officer or officers so removed, in whose stead and place new shall be chosen, shall, as to him and them, and every of them re- spectively, cease and- determine." A careful examination of this clause of the charter will show that it first contemplates a vacancy in the office of governor, deputy governor, or an assistant by death, or, sec- ond, by removal from office, which, "for any misdemeanor or default," it authorizes; and, in either case, it empowers the legislature to make an election to fill the vacancy so occasioned; and then declares that, after such election is made, "the authority, office, and power ' ' of the officer ' ' removed ' ' shall ' ' cease and determine. ' ' This is the whole scope of the provision, and the majority of the committee must, therefore, have been mistaken in supposing that it was applicable to a cass of vacancy in any of these offices occasioned by a failure of the people to elect. It applies solely to elections made by the legislature; and there is no authority given b.7 the charter to the leguslature to fill a vacancy in the office of governor, deputy governor, or an assistant,- occasioned in any other manner than by the death of the incumbent, or his removal from office for some " misdemeanor or default." The undersigned finds no other provision in the charter which can, to his understand- ing, be possibly supposed to Iiave an,y application to the official terms of the governor, lieutenant-governor, and senators; and as he cannot suppose the clause lastabove quoted and referred to can be understood as reaching any cases other than the two classes of cases he has mentioned, to wit, the death of the incumbent, and his removal from office for cause, he is forced to the conclusion that the charter does limit the term of office of the governor, lieutenant-governor, and senators to one year, "the year enstung" the 126 SENATE ELECTION CASES. pronunciation of their election in the genera,! assembly convened at Newport; and that there is nothing in the other provisions of that instrument to qualify this limitation. Can, then, the legislature of the State, consistently with the powers granted to that body by the charter, extend the official terms of those officers beyond the limits fixed by the charter? This inquiry would seem to.have been already answered; for, if it be admitted that the charter is the fundamental law of the State, and, as such, binding upon its legisla- ture, and that it does fix the official terms of the governor, lieutenant-governor, and sen- ators at one year, it must follow that an extension of those terms beyond the period fixed by the charter would be an act of legislation above and beyond the charter in a case where it makes express provision, and, therefore, an act of legislation not authorized bv the charter, but in direct violation of it. Such are the impressions fully entertained by the undersigned; but it is his duty to notice some of the positions by which the major- ity of the committee sustain themselves in an opposite conclusion. It will at once be seen that this discussion involves the constitutionality and validity of so much of the act of January, 1832, as extends the terms of office of the governor, lieutenant-governor, and senators in case of a failure to elect by the people, and there- fore has direct reference to the arguments by which the majority of the committee sus- tain that act. The first" position, in order, taken by the majority of the committee, which it is pro- posed to notice, is laid down in the following words: " Your committee hold it to be an undeniable principle, applicable to all forms of government, that there must exist in the supreme legislative power of the State a capacity to preserve itself from annihilation." This is a position to the soundness of which the undersigned cannot subscribe as ap- plicable to any of the forms of government adopted by any of the States of this Union, or by the Federal Grovemment. He supposes Congress to be " the supreme legislative power" of this Government, but Congress has by the Constitution of the United States no capacity to preserve itself from annihilation. If the people should fail to elect mem- bers to the House of Representatives, or if the legislatures of the States should fail to elect members to the Senate, there would be no Congress, nor could Congress itself con- tinue itself beyond the terms for which its members have been elected, or in any other way, by its action, bring a new Congress into existence. Congress, therefore, which is the supreme legislative power of the United States, has not the capacity to preserve its continued existence, or to prevent its own annihilation. The undersigned, from the time allowed him to prepare this report, has not been able to examine very extensively the constitutions of the several States, nor have his former researches made him familiar with the minute provisions of those instruments; but from the examinations he has been enabled to make he entertains the opinion that no such power is conferred upon any one of the legislative bodies organized by those instruments as that of continuing itself in official existence, by its own act, beyond the term for which its members were elected. He believes that the members of the legislatures of all the States are elective by the freemen of the respective States, and in the constitutions of some no provision is made for a failure by the people to elect, and no mode of remedying such failure but that of a resubmission to the people has ever been attempted by the legislatures of those States. The constitutions of other States provide for filling the vacancies which may exist from failures to elect by the choice of such of the members of one or both branches of the new legislature as may have been elected, generally con- fining that choice to a certain number of the candidates voted for by the people tor the office to be filled. Other States, where legal quorums are elected, suffer the vacancies occasioned by a failure to elect to remain unfilled until another regular election. There may be cases where the constitution of a State provides that the members of the old leg- islature shall continue to act until others are elected and qualified to fill their places, but the undersigned has been able to find no such case, nor does he believe that one ex- ists. He believes that the constitution of every State fixes definitely the length of the official term of the members of its legislature, and that without a re-election by the people, or some other re-election or reappointment prescribed by the constitution of the State, the official powers of every member of the State legislatures cease with the close of the term for which he was elected, whether any other person be or be not qualified to discharge the same duties. Surely, in the first class of the above cases, where the State constitution makes no provision for a failure to elect, and a new election is the only remedy within the power of the legislature, " the capacity to preserve itself from annihilation " does not exist in the legislature, the official terms of the members of which have expired. That capacity is in the people alone, and their election must determine the continuance or not of the legislative power. In the second class of cases, where vacancies occasioned, by a failure to elect are to be filled by such members of one or both branches of the new legislature as may have been POTTER VS. EOBBnifS. 127 elected, the capacity may exist in each legislature to preserve itself but not its succes- sion; and even this must depend upon the success of the people in electing a portion of the members; for if there should be a failure to elect the whole, or if the people should hold no election, there vrould be no one authorized to fill vacancies, and annihilation would follow. Such a legislature, therefore, has only sub modo the ' ' capacity to preserve ilself from annihilation," and has not at all that capacity in the sense in which the ma- jority of the committee are uiiderstood to use it, to preserve its succession. The third class, where the constitution of the State authorizes the members of the existing legislature to hold their offices and exercise their powers until others are elected or appointed and duly qualified to take their places, if indeed such a provision exists in the constitution of any one of the States, is still not a capacity which exists in the legis- lative power to preserve itself from annihilation, but a provision which exists in the con- stitution of the State to preserve its legislature from annihilation. The power or capacity is constitutional and not legislative, and, therefore, even in this class of cases does not bear out the msyority of the committee in the position they have laid down. The undersigned may have misapprehended the meaning which the majiority of the committee intended to give to the position itself, as they may have attached to the terms "supreme legislative power of the State" ideas which, as used, they have not conveyed to his mind. He has considered them as used in reference to the legislative bodies of the United States, and to legislative bodies acting in subjection to fundamental law para- mount to the powers of the legislative authority — indeed, from which the legislature de- rives its authority. If the position has not been taken in this sense, then the undersigned -must admit that his replies toitmaybea departure from the intention of the proposition ; but he must at the same time say that he thinks, in any other sense, the proposition is a departure from the argument it is used to support. The next position assumed by the majority of the committee to sustain this act of January, 1832, is that neither in the charter nor in the bill of rights, ' ' nor in any other act or instrument now in force, is there to be found any prohibition of the power to con- tinue over an existing legislature until their successors shall be duly chosen and engaged. ' ' The reasoning to support this position is that the constitutions of the several States are in the broadest sense popular, and that the legislative power granted by them embraces every object not expressly prohibited by some provision in the instrument itself, or by &. bill of rights. In reference to powers legislative in their nature and character, and not enumerated or particularly granted, this reasoning and the deduction from it may be generally sound as applicable to the State constitutions. It is respectfully submitted, however, that the estahlishment and organization of the legislative bodies, and as a neces- sary part of that establishment and organization the limitation of the terms of the mem- bers is, under our system, a constitutional and not a legislative power, and therefore, not coming within the scope of the reasoning of the committee, cannot be controlled by the conclusion drawn from that reasoning. But in the present case this point is not left to reasoning and inference. We have already seen that the terms of the members of the senate of Rhode Island are specifically fixed by the charter to one year. , The constitu- tion has provided for the case in terms, and its grant is positive, definite, and clear. It surely then wUl not be contended that this term may be extended without a violation of the grant, because the granting clause does not contain a prohibition against its viola- tion. It is a settled rule of construction that an affirmative and pcsitive grant, clear and intelligible in its terms, is itself a negative of what is not granted. The Constitu- tion of the United States fixes the term of a Senator at six years; and it surely would have been considered surplusage in that instrument to have added that the term of a Senator should be no more than six years; nor will it be supposed that Congress can pro- long that term because that negative is not affixed to the grant. This position, there- fore, cannot sustain the action of the legislature of Rhode Island in attempting by, a legislative act to prolong the term of the senators of that State beyond the period limited and prescribed by the fundamental law of the State. The majority of the committee further contend that the people of the State of Rhode Island sanctioned the act of January, 1832, by holding elections pursuaht to its provis- ions. The undersigned believes that in using this argument the majority of the com- mittee have not taken the proper distinction between the different provisions of that act. It has not been contended, to the knowledge of the undersigned, that those parts of the act which directed new elections in cases of failure to elect at the annual elections were unconstitutional or invalid. On the contrary, he understands that those provisions of the law are insisted upon as valid and binding, and that it is complained that the house of representatives did not carry them into effect according to their plain intent and mean- ing. It will be taxyad to have been made a distinct point by Mr. Potter in his argu- ment that even supposing all parts of the law of January, 1832, were constitutional and valid, the election of Mr. Robbins to the Senate was improperly made, because if that law had been properly carried iuto effect there would have been two or three sessions of 128 SENATE ELECTION CASES. the legislature of the State between January, 1833, when that election was made, and the ' 3d Qf March, 1833, when his former term expired; while-the law of the State regulating the election of United States Senators requires that election to be made "at the session of the general assembly next preceding the expiration of the term of service of the Sen- ator for the time being, and not before." His reasoning upon the subject is that it was the-intention of that law that elections should be held as I'requently as that could be done, the returns made, and the results ascertained, until a choice of governor, lieutenant-governor and senators should be ef- fected; that the law fixed ^the period of thirty days as the longest notice which should be given of a special election to be held under it; that several of those elections were held upon a much.shorter notice, and proved that elections might be held once in thirty days without difSculty; that these elections were continued at intervals differing not very widelyfrom this until the October session of the legislature in 1832; that alter that p&'iod but one election was held under the law; that at the session in January, 1833, the legislature, instead of adjourning to such a day as would give time for another trial to elect a senate, and so continuing to do I'rom time to time until the law made it im- perative upon them to elect a Senator, at any time before or even on the 3d day of March, 3833, then proceeded to make that election, the house of representatives having first re- solved that they would order no more elections under the law: that by this proceeding the persons acting as the governor, lieutenant-governor, and senate, under the law of January, 183-2, who were elected in April, 1831, without any reference to the election of a Senator, were made actors in that election, and actually gave their votes for Mr. IJob- bins, by which votes he was elected, when, if new elections had been ordered, as they should have been, other sessions of the legislature would have intervened betwetn Jan- uary and March, and the people would have had an opportunity to elect a governor, lieu- tenant-governor, and senate, with a view to the election of a Senator; that the iact that an election was effected at the first trial after November, 1832, proves very clearly that had elections been ordered some choice-would have been effected belbre March, 1833, and before the expiration of the then term of Mr. Eobbins; while the total change produced by the election in the governor, lieutenant-governor, and senate proves conclusively that the public will was not represented by the former incumbents of those offices. These suggestions are given here in as condensed a form as possible, that the Senate may allow them such weight in the decision of this important controversy as this body may think they deserve. They must in any event satisfy the Senate that these elections, held in obedience to the law of January, 1832, furnish no evidence of the acquiescence of the people of that State in any of the provisions of that law other than those appli- cable to the special elections, the validity of which provisions have not been and are not now disputed. Indeed, from the fact that that law charged the house of representa- tives alone with the execution of this portion of it, an argument has been drawn that it was not the intention of the legislature which passed the act that any business of an official or legislative character should be performed by the senate after the expiration of their constitutional terms, and that the provisions in the law for the official continuance of the governor, lieutenant-governor, and senators was designed as a mere formal con- tinuance Of the legislative body until an election by the people should be effected. The terms of the act, however, as will be seen by a reference to it, go very strongly to con- tradict this construction of it. , ^ Another position taken by the majority of the committee to sustain the validity of the act of January, 1832, is based upon the action of the supreme judicial court of the State of Rhode Island. The paper annexed, marked O, contains the evidence of the proceed- ings referred to. The facts seem to be that a person by the name of Miner was indicted v in September, 1832, for murder; that he was tried in March, 1833, before this court, con- victed, and sentenced to be hung in July, 1833. He presented to the court an applica- tion for a habeas corpus, upon the ground that the judges had not been appointed by a competent legislature, and were not, therefore, empowered to try and sentence him. The court refused the application, but the grounds of the decision are not stated. It is con- tended that this decision was a pronunciation of the judgment of that court in favor of the validity of the law of January, 1832. Mr. Potter makes two answers to this point. The first is that the statute of the State- expressly denies to this court the authority to grant a habeas corpus on the application of persons "committed for a capital crime,'' "or persons convict" (see the Revised Laws of Rhode Island of 1822, page 181). To this it is replied, as it would seem to the undersigned, with much force, that notwith- standing the prohibition of the statute it would be competent for the court to examine such an application where the allegation was that the whole proceedings had been coram nonjudice, and, if such should, in their judgments, be the fact, that the case would not come within the prohibition of the statute and the writ might be granted. The second answer is that the judges of this^court were the same persons from the first Wednesday in May, 1831, until the first Wednesday in May, 1833; that it is admitted on fill hiinda f OTTER VS. ROBBINS. 129 that their appointments and terms of service were within the power of the legislature, though the practice has heen to make the appointments annually; that these judges were properly appointed and. commissioned in 1831; that a resolution having the force of a law is always passed by every legislature of Rhode Island declaring that all officers in whose places no others have heen appointed by the legislature or who have not been themselves reappointed shall continue to hold their respective offices until others shall be liuly appointed and qualified to take their places; that a similar resolution ^as passed- by the legislature in office from May, 1831, to May, 1832; that these judges did hold their offices and continue to discharge their duties as judges by virtue of their appoint- ment in 1831, and of the resolution above described until August, 1832, although their year expired in the month of May, 1832; that the body acting as the legislature in August, 1832, but whose right so to act is now disputed, did in that month assume to reappoint these judges, but it is said that if it shall be determined that this body was not the legislature of the State authorized to perform the constitutional duties of the legislature of the State, then their assuming to reappoint these judges would neither add to nor take from the powers they possessed before that act was performed; that they were continuing \u office at the time by virtue of the resolution before mentioned; that they would so continue until removed from office or reappointed by a constitutional legislature; and that therefore their decision in the case referred to does not necessarily carry with it the decision of that court in favor of the validity of the act of January, 1832, because if they had decided expressly that that law was invalid and their purported re- appointment in August, 1832, void, they would still have been compelled to decide that they were in office by virtue of the resolution of the previous competent legislature as well alter as before August, and, being so in office, were a competent court to try and sen- tence the criminal in question. This reasoning seems to the undersigned to Ibllow necessarily from the facts, and to render wholly inconclusive this action of the court as a decision in favor of the validity of the law under consideration. The legislature which declared void the election of Mr. Eobbins and elected Mr. Pot- ter, in the preamble to the act making that declaration denominate the body which made the election of Mr. Eobbins "the general assembly," and assign as the ground upon which they declare void their proceedings in that particular the non-compliance with the act of January, 1832. > The majority of the committee consider this an admis- ■ sion sustaining the validity of that act. This same legislature also, at their first session, repealed the act of January, 1832, without expressing any opinion in the repealing act that the act to be repealed was not valid. This the majority of the committee also con- sider an admission to the same effect. How far admis.sions by this subsequent legisla- ture, if made, would render valid an unconstitutional law passed by a preceding legis- lature, or how far such admissions are to be considered evidence of the constitutionality of such a law, when that is the point in issue, are questions which, the undersighed leaves to the determination of the Senate. These admissions, however, appear to him to have been made, so far as they can be considered admissions at all, under circum- stances which should be considered. The Legislature of Rhode Island, at its October session, in the year 1833, pass an act in which they declare the electioa of Mr. Rob- bins to the Senate "to be null and void', and of no effect," and that the office of Sen- ator is vacant; not that the office is thereby vacated, but that it is "vacant." To that act they affix a preamble, in which they term the body of men which inade the election that they are about to declare void "the general assembly," and accuse them of a non-compliance with the law by virtue of wMch they held their offices; and this preamble is followed by the law which declares null and void the act referred to. Now, it would not do to assume that anything contained in this preamble v?as designed as an admission of the validity of the election of Mr. Robbins, because it was the sole object of it, and of the law to which it is the preamble, to declare that election void; and it vnll not be cx)ntended that the preamble to any legislative act is to be so construed as to contradict, defeat, and overrule the act itself, which .is the only part of the proceeding having validity. This legislature, then, did not intend to admit that Mr. Robbins had been validly elected to the Senate of the United States, but to deny that fact, and to declare not voidable but void the proceeding by which he purported to have been so elected; and the preamble to the act must be so understood and construed as to be consistent with this intention. Two grounds were assumed upon which that election was void: 1st. That the law of January, 1832, so far as it purported tocontinue the terms of office of the governor, lieutenant-governor, and senators, was in direct viola- tion of the constitution o^the State, and therefore void, and that the persons assuming to act as a governor and senate in the election oi Mr. Robbins were not constituti«nally a governor and senate, and were not authorized .so to act. 2d. That the governor and senate for the time being held their offices, not by virtue of an election by the people, but by virtue of the act of January, 1832, and that a failure to comply strictly with the provisions of that act had put an end to the powers they derived from it, and therefore S E C 9 130 SENATE ELECTION CASES. that they had no power to actin the eyectionof a Senator. The subsequent legislature ap- pehr from this preamble to their act to have assumed the latter ground as the foundation of their action, and anything in the shape of an admission in the preamble would seem to be properly referable to the views they entertained, and upon which they were acting, and not to-eonnectitself.with a view of the subject which does not appear from their pro- ceedings to have influenced their action. If, therefore, the ground assumed by this legis- lature should beheld to be untenable, and the ground first above mentioned, to wit, that the act of January, 18S2, so far as it purports to extend the ofiicial terms of the gov- ernor, lieutenant-governor, and senators, is in direct violation of the constitution of the - State, and therefore void, be well taken, the undersigned is unable to discover that any- thing in the admissions supposed to be contained in this preamble can Weaken or over'- turn it. In reference to the admission supposed to be drawn from the silence of the act repealing the act of January, 1832, the undersigned will simply remark that this was an act to repeal a law parts of which were held to be unconstitutional and void, and other parts of which were admitted on all hands to be valid and binding as law; and under these circumstances he cannot consider the absence of a declaration pointing out those parts wliieh were held to be unconstitutional, inasmuch as it was the object of the legis- lature to repeal the whole act, as going very far to sanction the whole act. The majority of the committee mention the action of the legislature of Ehode Island in relation to the election of members of Congress and the introduction of the plurality instead of the majority of votes to elect in the choice of those officers as going to show the extent to which the legislature have gone in regulating elections, contrary to the long- established customs_ of the State. Two remarks may be made in relation to this argu- ment. The first is, that the charter could not necessarily have contained any provision in relation to the election of these officers, inasmuch as it was granted for the government of a British colony, and not of the State of Ehode Island as a member of the confed- eracy of States composing this Government, and was granted more than a century before such a thing as a Congress of the United States of America was known or had exist- ence; whence, from necessity, the legislature must have full power over that whole sub- ject. The second is, that the fact that the legislature of Ehode Island extended, by law, the plurality mode of election to the choice of members of Congress where the charter does not interfere, and did not extend Ittotheelection of officer's of theState government where the charter prescribes the majority principle, affords at least as strong an inference in favor of their sense of the binding and paramount influence of the charter, where it does direct, as of any disposition to treat it lightly by disregarding the mere analogy when acting upon a ca.se not known to the charter. So much for the arguments which have been adduced by the majority of the committee to sustain the validity of the act of January, 1832. In corroboration of the point now under discussion, however, to wit, that the terms of the governor and senate can be continued beyond the year, themajority of the committee assume that these officers always have held over until the election was completed and their successors qualified. A perfect understanding of the facts, it is believed, will make this point plain. From the statments of the parties annexed, and before referred to, it is to be seen that the practice of the legislature of Ehode Island has ever been to adjourn to meet on the day previous to that fixed in thecharter for the annual election, and that pursuant to such adjournment, a quorum' of both houses assemble on that day always at Newport, the place named in the charter for holding the annual elections. It is undoubt- edly true, aa the hiajority of the committee remark, that when the people all sissembled ■and voted at that place they might remain together until an election was effected, and that the governor and senate of the former year might remain until that result was ascertained, but there is not found any provision in the charter making them at that time presiding officers of the election or Imposing upon them any other official duties after the opening of the election. The new house of representatives always assembled on the day fixed for the election, and took the oaths of office on that day. They always acted as the canvassers of the votes, and the result of the election was declared bythatbody. Since the system of voting by proxy, as before d escri bed, has been adopted, the proxies have always been returned to Newport and canvassed by the new house of representatives, as the votes given by the people there assembled formerly were. They declare the result as they tbrmerly did, and the election is closed. If a governor, lieutenant-governor, and senate are found to be elected, the persons elected are sworn, and the legislature is organized; and as an elec- tion of a governor, lieutenant-govenor, and a quroum of the senate has never failed to be made until the first Wednesday in May , 1832, the history of the government of the colony and State furnishes no precedent for such a case as that under consideration, where the former governor, lieutenant-governor, and senators, or any of those officers, have held over and attempted to perform official acts because successors were not elected. That history does, however, present several instances where the. whole number of senators have not been elected and no attempt has been made to fill the vacancies by anew election, or in any other EOBBINS. 131 manner, nor have tlie former incumbents of the vacant seats ever claimed to hold over the terms for which (hey were elected, but the vacancies have in all such cases been suf- fered to remain for the year. It should be further remarked that no evidence is found to show that any election has occupied more than the day fixed in the charter, so that any presumption of a holding over of these officers in consequence of a failure to elect on that day is unsupported by evidence. From these facts it would seem to the undersigned to follow necessarily that the old governor and senate are brought together by the adjournment of the legislature to the day previous to the election; that subsequent to that day, unless re-elected, they have never had any official duty to perform, and have never perlormed any; that the right to hold over, in case of a failure to elect, had not been admitted in the practice of the gov- ernment under the charter, because repealed instances have happened where failures to fill places in the senate have occurred and the iccvimbents have net continued to occupy them, but they have remained vacant for the whole year; that the holding over referred to by the majority of the committee has relation only to the day of election, and then these officers, unless re-elected, have no official duties to perform; and that, therefore, the holding over of the governor, lieutenant-governor, and senators of that State from the first Wednesday in May, 1832, to the first Wednesday in May, 1833, in consequence of a failure of the people to elect, was not sanctioned by any former practice of the government under the diaiter, and must be held to have been done by virtue of and in obedience to the act of January, 1832, and not by virtue of any provision in the charter or in conformity with any Ibrmer precedent. The opinion of the undersigned as to the validity of such of the provisions of that law as assumed to extend the official terms of these officers has been given in his remarks under the two first heads of this report,'where it will be seen that he has come to the conclusion that the charter is to he regarded as to this question as the fundamental law of the State, binding upon its legislature, and that it does limit specifically their offi- cial terms to one year. As it has been intimated in some one of the statements of fact that the duty of swear- ing the new governor, lieutenant-governor, and senators devolved upon the old officers as an official act to be performed by them alter the election had been effected, it may be proper to refer here to the paper annexed, marked P, to show that, for a long term of years at least, this duty has been perlormed by the secretary of state, and not by them. This brings the undersigned to his fourth inquiry, which is: Can the Senate of the United States, when these questions are presented to it by the action of the legislature of the State of Ehode Island, in the purported election of a member for this body, look into and pronounce its opinion upon them by way of inquiry into the right of a sitting member to the seat he occupies? Two bodies of men, calling themselves the senate and house of representatives of thB State of Ehode Island, and together acting as the legislature of that State from the first Wednesdtyr in May^ 1832, to the first Wednesday in May, 1833, did, in January, 1833, assurde to elect Asher Eobbins to the Senate of the United States for the term of six years from and after the 3d day of March then next, to fill a vacancy to be produced by the expiration of his then term of office on the last-mentioned day. Mr. Eobbins received a majority of the votes given by these two bodies of men for the office, and the election was conducted according to the forms pursued by the legislature of Ehode Isl- and in the election of Senators. The result of the election was pronounced in- the usual manner, and the person acting as governor of the State at the time issued to Mr. Eobbins a commission in the usual form, and authenticated in the usual manner, lor the office. This commission was presented to and read in the Senate of the United States on the 4th day of February, 1833, and placed upon the files of that body. This election of Mr. Eobbins was protested against by several members of the house of representatives of that State soon after it was made (see protest annexed, marked Q), and has ever since been alleged to have been void, on the ground that the persons acting as the governor, lieutenant-governor, and senators of the State at the time of the election, and aiding in making it, were not constitutionally the governor, lieutenant-governor, and senators of the State, nor authorized to perform that act, and, of consequence, that the person acting as the governor of the State, and as such signing Mr. Eobbins's com- mission, was not constitutionally the governor of the State, nor authoazed to perform that act. In the month of October, 1833, two other bodies of men, admitted to he the sen- ate and house of representatives of the State of Ehode Island, were assembled and con- stituted the legislature of that State, and while so assembled this legislature passed the law to be found annexed to the report of the majority of the committee, and marked A, declaring the election of Mr. Eobbins "null and void, and of no effect," and the office to be ''vacant." This same legislature then proceeded to electa Senator to fill the va- cancy which they alleged existed by the expiration of Mr. Eobbins's former term in March previous, and, upon counting the votes given, Elisha E. Potter was found to have 132 SENATE ELECTION CASES. received a majority of the whole, and was declared to have been duly elected. The elec- tion was conducted in the usual manner, and the person admitled to he the governor of the State issued to Mr. Potter a commission for the office in the usual forru, and with the proper authentications. This commission was presented tothe Senate of the United States and read in that body on the first day of its present session, and iit the same time Mr. Eohbins and Mr. Potter both presented themseves at the bar, and each offered to take ■ the oath of office as a Senator of the United States from the State of Khode island. This is believed to be a sufficient summary of the facts to pre.=ent this point intelligi- bly to the Senate. It will be seen Irom them that the question is ^■aised upon theaction of a body admitted on all hands to have been a constitutionally organized legislat ure of the State of Ehode Island, decJaring "nu)l and void, and of no effect," an important act of a preceding body claiming to be the legislatnreof that State, but the OJganization of which was peculiar, and the constitutionality and legality of whose acts are questioned. The Senate,, by,the Constitution, is made "the judge of the cledions, returns, and qualifications of its own members," and (an it, under this power, look into these iacts to determine which of the persons claiming the seat as a Senator IronLlihode Island is entitled to represent that State in this body? No question appearslo thcundeisigned'to be raised as to the "returns"or "qualifica- tions" of either of the claimants, and he therelote considers that the question of ""elec- tion" is the only one presented for decision. This question the Senate has the power to determine, because it is made "the judge of the elections" of its own members. The' facts in this case show that the legislature of the State of Ehode Island declare, in the solemn form of a law of the Stale, that Mr. Eobbins has not been elected tothe Senate; that the proceedings liom which his commissolQ proceeded were " null and void, and of no effect," because the body taking them were not authorized to elect a Senator; and that the place was "vacant" at the time when this declaration was made. Still, not- withstanding this solemn declaration by a body conceded to be the legislature of the State, Mr. Eobbins produces to the Senate, and there is referred to the committee, a ccmmissioii in due (bim, according to the laws and the practice of the government of Ehode Mand, to show that Mr. Eobbina had been duly elected a Senator to represent that fstate in the Senate of the United States. Will the Senate look behind this com- mission todetermine whether or not it was properly granted? The undersigned believes that it is not only the right but the duty of the Senate to do so. The commission is only the evidence of the election of a Senator, and if the Senate were to limit; its in- quiries to the proper Jbrm and authentication of the commission it would only make itself the judge of the evidence of an election, not the judge of the election itself. The undersigned -supposes that the evidence of an election to an office is, in all cases, prima /ae7(! only, and is susceptible of being controverted and contradicted before a tribunal competent to judge of the election; he therefore supposes that the reguUiiity of the m- device of an election may be one thing atid that the-(tei!0«may be a very different thing; and heconcludes that, as the Senate is constituted not the judge of the evidenceof the elec- tions of its members only, but " the judge of the elections" of its members, it may and, in all cases of a contested election where the contest does not arise as to the regularity of the evidence simply, should look behind the evidence and into the election itjself, that it may determine what it is constituted the judge to deteTmine, the fact of election, or, in other words, that it may determine whether the prima facie evidence laid before it is the real evidence of facts or is subject to contradiction by the tacts. The terms of the Constitutipn would seem to confirm this construction of the powers of the Senate. Itis "the judge of the elections, returns, and qualifications of its own members." The "returns" must refer to the commissions or other evidences of elec- tion of the members of this body as separate from the "elections" or "qualifications," and of the "returns" the Senate is the judge. Again, the "qualifications" must re- late to tlie age, citizenship, residence, and other personal qualifications of the person elected, and of these "qualifications" the Senate is also the' judge, and these are mat- ters to be determined separate irom the "elections "and "returns." So also the Senate is the judge of the "elections" of its members as separate from the " returns and quali- fications " The three enumerations would seem to be separate subjects, upon each of which the Senate is to judge in the performance of its constitutional duty; and as a judgment upon the returns is made a separate matter from a judgmentupon theelection,- the inlerence would seem to be irresistible that an examination behind the returns was contemplated, that a judgment upon the election, independent of the return, might be formed. Against this construction of the constitutional powers and duties of the Senate the majority of the committee interpose objections which are of a consequential character mostly, but which will be considered. The committee say "it would be a dangerous exertion of power to look behind the commission for defects in the component parts of the legislature, or into the peculiar organization of the body for reasons to justify the POTTER VS. BOBBINS. 133 Senate in declaring its acts absolutely null and void. Such a power, if carried to it8_ legitimate extent, would subject the entire scope of State legislation to be overruled by our decision, and even the right of suffrage of individual members of the legislature whose eleclions were contested might be set aside. It would also lead to investigation into the motives of members in casting their votes, for the purpose of establishing a charge of bribery or corruption in particular cases." Keserving for the present the consideration of the extent to which the consequences of adjudging any act unconstitutional, or illegal, or invalid may be properly used as an " argument against such an adjudication, the undersigned respectluUy suggests.that in his judgment the. consequences here mentioned do not necessarily follow the decision ap- prehended. He understands it to be a necessary rule of all legislative bodies empowered ■ to judge of the "elections, returns, and qualifications" of their own members that the person presenting the prima facie evidence of membership is allowed to take his seat, and is fully authorized to act until such prima facie evidence of right is overruled by the judgment of the body; and he never heard it doubted or questioned that the votes of a member so sitting were as valid for all purposes as the votes of a member whose seat was not contested, and whose right to a seat was not questioned. Indeed, if it were iiot so the admission of a member to a seat in a legislative body until his election, return, and qualifications had been definitely adjudged would be an absurdity. It would be the admission into the body of a voter who might, by the adjudication of the body itself, vitiate its whole proceedings. So also in the case supposed by the majority of the committee of alleged bribery and corruption. The undersigned has always supposed that a member of a legislative body who should accept a bribe was punishable for the crime; but he has never understood, nor does he now understand, that the vote of the member given under the corrupt in- fluence vitiated the proceeding voted upon or rendered either void or voidable by legal adjudication such proceeding. The member bribed is still constitutionally and legally a member of the body notwithstanding his corruption, and retains all his rights and all his powers as a member until conviction for the crime ousts him from his seat. Hence it is concluded that the consequences above enumerated cannot follow the de- cision involved in the present controversy, whatever that decision may be, as the ques- tion presented is not whether the persons who did act as the governor and senate of Rhode Island, or some other persons claiming the right so to act, were the proper persons to discharge the duties of those offices; but the question is, were the persons who did so act constitutionally and legally, even by any prima facie claim, the governor and senate of that State, and as such authorized to vote upon the election of a Senator? •Again, the majority of the committee say "such a power does not belong to the Fed- eral Government, and would, if claimed and carried out to its full extent, annihilate all the reserved rights of the States. It is a general principle of national law applicable to all distinct and independent governm'ents, that if there arise any disputes in a state on the fundamental laws and administration, or on the prerogatives of the difierent powers of which it is composed, it is the business of the state alone to judge and determine them in conformity to its political constitution. No government has a right to intrude into the domestic affairs of another state, and attempt to influence its deliberations, or to control its action." These principles may be perfectly sound when applied to nations wholly disconnected with and independentof each other; but the undersigned respectfully submits that they cannot be applicable to governments related to and connected with each other, as are the governments of the States of this Confederacy and the Federal Government, of which the States are component parts, and especially when the question is the proper repre- sentation of the State in that branch of the Federal Legislature where its sovereignty is represented in the particular manner pointed out by the Federal Constitution. Upon such a question, that instrument, and not tbe general principles of international law, must govern the decision. We have already seen that the Constitution makes it the duty of the Senate to judge of the "elections" of its members. Another provision of that instrument says "the Senate of the United States shall be composed of two Sena- tors from each State, chosen by the legislature thereof;" and the question now directly presented is, was Mr. Eobbins chosen by the legislature of the State of Rhode Island ? It would seem to the undersigned, with all deference to the opinion expressed by the ma- jority of the committee, that the Senate cannot judge of the election of that individual unless it can look into and decide this question, and that to determine this to be an un- authorized interference on the part of the Federal Government in the domestic affairs of the government of the State of Rhode Island would be to determine that the Senate cannot, in the most important point always involved, "judge of the elections" of its own members; that it cannot judge whether or not they were chosen by the legislatures of the States, when the Constitution expressly requires that they should be so chosen. 134 SENATE ELECTION CASES. la tMs connection, the majority of the committee seem to place much stress upon another argument, entirely consequential in its character, which is, that a decision hy the Senate that the body of men who elected Mr. Robbing was not the legislature of Rhode Island will be in effect a decision that all the laws passed by that body, acting as the legislature of that State, and all its other acts,^ performed in that capacity, are null and -void. Inasmuch as the State has now, and has had since the first Wednesday in May, 1833, a legislature admitted on all hands to be constitutionally chosen and or- ganized, it would appear to the undersigned that the majority of the committee give an' unnecessary importance to this consequence 'of such a decision in case the consequence must follow; because the evils apprehended, to a very great extent, if not to the entire extent, might be remedied by the action of the competent legislature in aflSrmance of the acts to be affected. But, however this may be, he cannot but consider it a plain proposition, and not requiring argument to support it, that when the constitutional or- ganization ot a body of men claiming to be the legislature of a State is the question in issue, the acts of that body whose constitutional powers are disputed are not to be ad- duced as evidence of the constitutional power of the body to perform them. When the constitutionality of a legislative act is questioned, he cannot believe that the act itself is to be relied upon as evidence of its own validity. Equally clear is it to his mind that when such a question is to be determine'd the consequences of pronouncing the act in- valid are not considerations which should legitimately control the decision. The act is ^either constitutional or unconstitutional. "If constitutional, the dispute is settled; if unconstitutional, no consequences to follow from a pronunciation of that fact can make it valid. So with the body claiming to be the legislature of a State. If the legislature of the Stale according to the provisions of its constitution, the controversy is at an end; if not the legislature of the State, no acts of theirs in their assumed character, and no consequences to follow from the invalidity of those acts, can give them the powers which they had not when the acts were performed, or make them, what they were riot, the legislature of the State. But if consequences can be legitimately considered in the argument^ the undersigned feels compelled to say that to his mind a decision that the State of Rhode Island has no fundamental law or constitution of government but the will of its legislature will be a consequence to its people much more serious than any which can be apprehended from pronouncing void the acts of the body of men assuming to be the legislature of the State from May, 1832, to May, 1833. ■ . The undersigned then concludes that the charter of Charles II granted to the colony of Rhode Island and the Providence Plantations (now the State of Rhode Island) in the year 1663, and submitted to and adopted by the people of the colony in the year 1663 and 1664, is now to be considered the fundamental law of the State of Rhode Island, and binding upon its legislature as a constitution of government, except so iar as the provis- ions of that charter were rendered obsolete by the American Revolution ; that that charter does fix, and specifically limit, the official terms of the governor, lieutenant-governor, and senators of the State to one year; that the legislature of the State have not the power to extend those official terras beyond that limit; and that the Senate, upon a question as to the election of a Senator, has the right to inquire whether he was chosen by the legislature of his State, and, consequently, whether any body of men assuming to choose a Senator were authorized, as members of the legislature of their State, to make the choice under the ijrovisions of the constitution of such State. It being conceded that the official terms of one year of the governor, lieutenant-gov-- ernor, and senators of Rhode Island had expired in May, 1832, and that they continued from that period until May, 1833, tb act in those ofBces, "respectively, without any new election by the people, the undersigned is compelled to conclude that they acted during that period without constitutional authority, and that they were not, after May, 1832, members of the legislature of that State, and were not, therefore, in January, 1833, when they did so act, empowered to vote in the choice of a senator to represent that State in the Senate of the United States. And inasmuch as the Constitution requires either a governor, or lieutenant-governor, and at least six senators to constitute, with the house of representatives, a legislature; and as there were no such ofiicers in consti- tutional existence in the State of Rhode Island in .January, 1833, when Mr. Robbins purports to have been chosen a Senator, he is brought to the further conclusion that that choice was not made by the legislature of the State. Has, then, Mr. Potter been validly elected a Senator from that State? Thatthebodyby which he was chosen was the legislature of the State has not been questioned; but in speaking upon that point the majority of the committee express the opinion that that legislature had no "authority to proceed to the election of another Senator until theseat' of the Senator-elect had been vacated by a solemn decision of the-Senate of the United States." If, speaking legally and constitutionally, there was a Senator-elect, then this opinion is unquestionably sound, as it will not be contended that any legislature of a State has the power to vacate a seat in the Senate. To be m.ore explicit and intelligi- POTTER VS. BOBBINS. 135 ble, if Mr. Bobbins's election waa voidable only, and not void, a subsequent legislature could not act until' the vacancy was produced by the decision of the Senate. But if, as the undersigned has expressed hisopinion, the election of Mr. Eobbins was not made by the legislature of the State, then it was not voidable, but absolutely void; it was not an election within the requirement of the Constitution of the United States, and the vacancy existed from the expiration of his former term in March, 1 833. If theSenate shall come to this conclusion, then the undersigned is not aware of "any ground npon-whicji it can be contended that any constitutionally organized legislature of the State had not the power to fill thstt vacancy, or that the election of Mr. Potter made by such a legislature in October, 1833, is not valid. All which is respectfully submitted. SILAS WEIGHT, Jb.v [The documents annexed to the minority report are here omitted.] 136 SENATE ELECTION CASES. [Twenty-eighth Congress — ^Fiist session.] JOHN M. NILES, Senator from Connecticut from December 21, 1835, till March 3, 1839, and from May IG, 1844, till March 3, 1849. Mr. Niles was elected to the Senate for the term beginning March 4, 1843. His credentials were not presented until April 30, 1844, when the Senate resolved that they be referred " to a select com- mittee, consisting of live members, who shall be instructed to inquire into the election, return, and qu&lifiGationof the said John M. N-iles, and into his capacity at this time to take the oath prescribed by the Constitution of the United States." Some memberaof the Senate doubted the constitutional power of the Senate to mal^e such an inquiry. May 16, 1841, the committee reported that he had been duly elected, and that they ' ' are satisfied that Mr. Nilea is atthis time laboring under mental and physical debility, but is not of 'unsound naind' in the technical sense of tliat phrase; that the faculties of his mind are subject to the control of his will, and there is no sufficient reason why he be not qualified and permitted to take hisseatasamember of the senate." They reported the fol- lowing resolution ; " Resolved^ That the Hon. John M. Niles be permitted to take the oath of a Sen- atorin the Congress of the United States, and to take his seat as a member of the Senate." The resolution was adopted. The history of the case here given consists of a transcript of the proceedings of the Senate relat- ing to it fi'om Senate Journals, 1st sess. 28th Cong., and the report of the committee copied f>om the original on file at the ofiice of the Secretary of the Senate. The debates are found on pages 564, 565, 602, 603 of the Congressional Globe, 1st sess. 28th Cong., vol. 13, part 1. Tuesday, April 30, 1844. Mr. Fairfield presented the credentials of the Hon. John M. Niles, elected a Senator by the general assembly of the State of Connecticut for the term of six years commenc- ing the 4th day of March, 1843; which were read. Mr. Jarnagin submitted the following resolution ; which was considered by unanimous consent, and agreed to: ' 'Besolved, That the credentials presented to the Senate of the election of John M. Nilea to be a Senator of the United States from the State of Connecticut be referred to a select committee, consisting of five members, who shall be instructed to inquire into the election, return, and qualification of the said John M. Niles, and into his capacity at this time to take the oath prescribed by the Constitution of the United States." On motion by Mr. Jarnagin, Ordered, That the said committee be appointed by the President ^o tempore; And Mr. Jarnagin, Mr. Benton, Mr. Berrien, Mr. Wright, and Mr. McDuffle were appointed. Thursday, Mai/ 16, 1844. Mr. Jarnagin, from the select committee to whom the credentials of the Hon. John M. Niles were referred, submitted a report, accompanied by the following resolution: "Besolved, That the Hon. John M. Niles be permitted to take the oath of a Senator in the Congress of the United States, and to take his seat as a member of the Senate." The Senatejroceeded to consider the resolution; and having agreed thereto, The oath prescribed by law was administered to the Hon. John M. NUes, and he took his seat in the Senate. REPORT OF COMMITTEE. Is THE Senate of the United States, May 16, 1844. Mr. Jarnagin made the following report: The select committee, to whom was referred the credentials of the Hon. John M. Niles, to be a Senator of the United States from the State of Connecticut, with instructions to inquire into the election, return, and qualifications of the said John M. Niles, and into his capacity "at this time to take the oath prescribed by the Constitution, have performed the duty assigned and present the following report: In the month of May, 1842, the Hon. John M. Niles was duly elected a Senator from the State of Connecticut in the Congress of the United States for the term of six years Irom the 4th of March, 1843. The committee are satisfied his election, return, and quali- hcalions are legal and sufdcient, and that it remains to inquire into his rapacity at this time to take the oath prescribed by the Constitution. - In prosecuting this iiiquiry the committee addressed a note to Mr. Niles requestiug an interview with him, which w;is JOHN M. NILE8. 137 promptly given. Between him and the committee there have been full, free, and irank converaations. My. Niles gave so satisfactory an account of his afflictions and present condition as to render a resort to other evidence unnecessary in the opinion of the com- .mittee. He haslong been laboringunder severe bodily afflictions, which, as was natural, impaired the energies of his mind to such an extent that it was deemed proper to remove him to a retreat at Utica, in the State of New York, of which he remained an inmate till about the 1st of April, 1844. His visitations were greatly alleviated, but he felt he had not physiQal ability to discharge the duties of a Senator for some time after the com- mencement of the present session of Congress, and a strong aversion to being an obstacle in the way of a full representation of his State in the Senate, but his inclinations were yielded to what was thought the better judgment of his friends, in obedience to which he repaired to Washington to take his seat in the Senate about the 1st of April last, but felt unable to do so tUl the 30th of that month, when he presented himself to be quali- fied as Senatoi'. As evidence of the propriety of the course pursued, Mr. Niles presented to the committee the following letter of Dr. A. Bingham: "Asylum, Utica, April 24, 1844. "Hon. John M. Niles: "MyDeaeSie: Your letter has been received and read with much satisfaction. Iper- ceive yon are improving, and that it requires but a little more time, warm weather, and exertion on your part, with some urgency of friends, to restore you to health. Though yon have been greatly afflicted with sickness, I trust you will call to mind that you have laeen no more so than thousands of others who have perfectly recovered. To effect your restoration now, ray dear sir, requires that you engage in some active duties. You are in the condition that the distinguished Robert Hall was for a while, and to whom his friend Sir James Mcintosh, who was educated a physician, gave the following advice, the advice that I give to you now, and urge yon to follow it: 'The remedy,' says he, ' in your case is prescribed by the plainest maxims of duty — you must act. Inactive con- templation, or lamentation, is a dangerous condition for minds of profound moral sensi- bility. ' Let me therefore urge you to resume your seat in the Senate as an act of duty and a resource against disease. Such exercise is necessary for your health, and by it you may also serve others. ' ' Please show this letter to your brother, and perhaps to other friends, to whom I wish to say that a peculiarity of your nature is, even when well (so g'reat.is your caution), to require a little urging. I hope, therefore, they will not fail to^ischarge their duty now in urging you to this course. I hope in a few days to hear you are daily engaged for an hour or two in the Senate ' ' The committee are satisfied Mr. Niles is at this time laboring under mental and physr ical debility, but is not of "unsound mind, "in the technical sense of that phrase; that the faculties of his mind are under the control of his will; and they see no sufficient reason why be be not qualified and permitted to take his seat as, a iriember of the Senate, and they most cordially unite With Dr. Bingham in the hope that such a course will be the means of usefulness and a resource against disease. Beaolved, That the Hon. John M. Niles be permitted to take the oath of a Senator in the Congress of the United States, and to take his seat as a member of the Senate. 138 SENATE ELECTION CASES. [Special session of Senate, March, 1849.] JAMES SHIELDS, Senator from Illinois from March G, 1849, till March 15, 1849, and from December 3, 1849, till March 3, 1855. Mr. Shields, an alien by birth, was elected to the Senate January 13, 1849, for the term of six years from the 3d of March following. March 6 the oathwas administered to him, and his credentials re- ferred to a select committee. The committee reported that it appeared that he was naturalized on the 21st day October, 1840, and reported the resolution *'that the election of James Shields to be a Senator of the United States was void, he not having been a citizen of the United States the term of years required asaqiialification t., be a Senator of the United States." The resolution was amended by addinff to it the words "'a( tliecom/tnencementofthe term for which he was deeted,'''' and passed March lo; Mr. Shields was afterward elected for the same term. The history of the case here given consists of a transcript of the proceedings of the Senate relat- ing to it from the Senate Journal, 2d sess. 30th Cong.,1848-,'49. The debates on the case are found in the Appendix to the Congressional Globe, 2d sess. 30th Cong., vol. 20, 1$4S-' 49, pages 326-351, special references to which are inserted below. Friday, March 'i, 1849. Mr. Douglas presented the credentials of the Hon. James Shields, chosen a Senator by the general assembly of the State of Illinois for and during the term of six years from and after the 4th day of March, A. D. 1849; which were read. Monday, March 5, 1849. The Hon. James Shields, whose credentials were read the 2d of March, appearing for the purpose of being qualified, Mr. Walker submitted the following resolution; which was read: '^Resolved, That the certificate of election of the Hon. James Shields to a seat in this body be referred to the Committee on the Judiciary, with instructions to inquire into the eligibility of the said James Shields to a seat in the Senate of the United States as a member thereof " The Senate proceeded to consider the resolution by unanimous consent. Ordered, That the further consideration thereof be postponed until to-morrow. Tuesday, March 6, 1849. On motion by Mr. Douglas, the oath prescribed by law was administered to Mr. Shields. [On Mr. Douglas's motion a debate ensued on the question whether Mr. Shields's cre- dentials were such prima fade evidence of the necessary qualifications to a seat in the Senate as entitled him to be at once sworn, or whether they should be first referred to a committee; which debate is found on pages 327-329 of the Congressional Globe referred to in the head-note.] ' The Senate proceeded to consider the resolution submitted yesterday by Mr. Walker in relation to the credentials of the Hon. James Shields; and, having been amended, it was agreed to, as follows: "Besolved, That the certificate of the election of the Hon., James Shields to a seat in this body be referred to a select committee, consisting of five members, with instructions to inquire into the eligibility of the said James Shields to a seat in the Senate of the United States as a member thereof. " [On this amended resolution, offered by Mr. Butler, some remarks were made on the question whether the case should more properly go to the Committee on the Judiciary or to a select committee, which remarks are found on page 330 of the Congressional Globe before referred to.] Wednesday, March 7, 1849. Besolved, That the standing and select committees for the present special session of the Senate be constituted and appointed as follows, viz: Select committee on the eligibility of the Hon. James Shields as aSenator— Mr. Ben- ton, Mr. Felch, Mr. Webster, Mr. Mason, and Mr. Pearce. JAMES SHIELDS. 139 Thdesday, March 8, 1849. Mt. WalkM submitted the following resolution; which was considered by unanimous consent, and agreed to: ''Bcsulved, That the select committee to inquire into theeligibility of the Hon. .James Shj6lds to a seat in the Senate of the United States as a member thereof be authorized to wmd lor persons and papers, and to call to their aid a person authorized to administer oaths, and to take the testimony of such persons as the committee may deem proper, and to procure the proper authentication of any papers or records which the committee may at any time have before it relating to the subject-matter under its consideration." Mr. Walker presented a copy of the record of naturalization in the case of the Hon. ^ames Shields; which was referred to the said select committee. REPOET OF COMMITTEE. Tuesday, March 13, 1849. Mr. Mason submitted the following report: The select committee to whom was referred the certificate of election of the Hon. James Shields to a seat in this body, with instructions to inquire into the eligibility of the said J ames Shields to such seat, report — That having given due notice to the said James Shields, he appeared before them, and they took the subject into consideration. They further report that.the said certificate of election declares that the said James Shields was chosen a Senator of the United States by the legislattire of the State of .Illi- nois on the 13th day of January last: that it further appears, and is admitted by the said .James Shields, that he is an alien by birth, and the only proof before the committee Of the naturalization of the said James Shields in the United States is contained in the copy of a certificate of naturalization in the circuit court of EfSngham County, in the said State of Illinois, which is annexed to and made part of this report; by ^hich certificate it appears that the said James Shields was admitted by said court a citizen of the United States on the 21st day of October, 1840. The committee thereibre report the following resolution: ' ' Resolved, That the election of James Shields to be a Senator of the United States was void, he not having been a citizen of the United States the term of years required as a qualification to be a Senator of the United States." Ex parte James Shields. This day personally appeared in open court James Shields, and made and filed the following declaration: James Shields, being duly sworn in open court, declares on oath that he was born in the county of Tyrone, in the kingdom of Ireland, on the 17th day of May, about the year 1810; that he emigrated to the United States of America while a minor, and' con- tinued to reside in the United States three years next preceding his arriving at the age of twenty-one years, and has continued to reside therein since to the present time; he is now upwards of twenty-one years of age, and has resided upwards offive years within the State of Illinois aforesaid, one of the United States; that it is his intention to become a citi- zen of the United States, and to renounce forever all allegiance and fidelity to any loreigu prince, potentate, state, or sovereignty, and particularly to the Sovereign of Great Britain and Ireland; and he further declares that for three years next precedingthe present appli- cation it has been his bona fide intention to become a citizen of the United States. JAMES SHIELDS. Subscribed and sworn to in open court, this 21st day of October, 1840. WILLIAM H. BLAKELY, Clerk of said Court. This day personally appeared in open court James Shields, a free white person, upwards of twenty-one years of age, and applied to be admitted to become a citizen of the United States, and who, being duly sworn, declares on oath, in open court, that he will support the Constitution of the United States, and doth absolutely and entirely renounce and abjure all allegiance and fidelity to every foreign prince, potentate, state, or sovereignty whatsoever, and particularly of the Sovereign of Great Britain and Ireland, whereof he was born a subject; and the court being satisfied that he has fully complied with the re- <]uirements of the laws of the United States on the subject of naturalization, and that he has resided within the United States upwards of five years and witbin the Stat* of Illi- nois upwards of one year next preceding this application, and that during the whole of the time of his residence in the United States he has behaved as a man of good moral 140 SENATE ELECTION CASES. character, attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the same, it is therelbre ordered and ad- judged that the said James Shields be admitted a citizen of the United States, and that he is hereby admitted as such. State of Illinois, Effingham County, ss; I, John S. Kelly, clerk of the circuit court in and for said county, certify that the foregoing is a true copy of the record of naturalization in the case of James Shields, en- tered, as appears upon the record, on the 21st day of October, A. D. 1840. ' Given under my hand and private seal (there' being no official seal yet provided for said court at Effington) this Slst day of January, A. D. 1841. [seal.] JOHN S. KELLY, Clerk. [Mr. Mason, when he presented the report, made a statement that^a communication in writing to the committee from General Shields had, owing to some inadvertence, never reached them, but that he had since seen it, and that it might be seen by Senators; which statement is found on page 332 of the Congressional Globe referred to.] The Senate, \>y unanimous consent, proceeded to consider the resolution reported hy the committee. . Mr. Foote moved that the further consideration of the resolution be postponed until the first Monday in December next.* [The debates on the adoption of the resolution and on Mr. Foote's motion are found on pages 333-336 of the Congressional Globe.] After debate. Ordered, That the further consideration of the resolution be postponed until to- morrow. Wednesday, March 14, 1849. The Senate having before it the motion made yesterday, to postpone until the first Monday in December next the resolution in relation to the election of James Shields, a debate ensued, after which Mr. Foote withdrew the motion, f [The debate on this motion is found on pages 337, 338 of the Congressional Globe.] The Senate resumed the consideration of the resolution reported by the select com- mittee in relation to the election of James Shields; and. After debate. On motion by Mr. Cass that the resolution lie on the table, it was determined in the negative — yeas 15, nays 34. On motion by Mr. Cass, the yeas and nays being desired by one-fifth of the Senators present, Those who voted in the afiirmative are Messrs. Bradbury, Cass, Dickinson, Douglas, Downs, Fitzpatrick, Foote, Hale, Hamlin, Jones, Eusk, Soul6, Sturgeon, Turuey, and Yuiee. Those who voted in the negative are Messrs. Atchison, Badger, Baldwin, Bell, Berrien, Borland, Bright, Butler, Calhoun, Chase, Clarke, Corwin, Davis of Massachusetts,' Davis of Mississippi, Dawson, Felch, Greene. Hunter, Mangum, Mason, Miller, Morton, Norris, Pearce, Phelps, Seward, Smith, Spruance, Underwood, Upham, Wales, Walker, Webster, and Whitcomb. ' On motion by Mr. Calhoun to amend the resolution by adding thereto ' ' at the com- mencement of the term for which he was elected," Alter debate. On motion by Mr. Hale that the further consideration of the resolution be postponed until to-morrow, it was decided in the afiiniiative — yeas 24, nays 23. [The debates on the last two motions are found on pages 338-342 of the Congressional Globe. They include a discussion of the question whether the election of General Shields was void or voidable, and whether, in case the resolution as amended should pass the Senate, the governor of Illinois would have power to fill the vacancy by appointment.] On motion by Mr. Douglas, the yeas and nays being desired by one-fifth of the Sen- ators present, Those who voted in the affirmative are Messrs. Atchison, Bell, Borland, Bradbufy, Butler, Cass, Chase, Douglas, Downs, Felch, Fitzpatrick, Foote, Hale, Hunter, Jones, Mason, Norris, Eusk, Seward, Soul6, Sturgeon, Tarney, Underwood, and Yulee. Those who voted in the negative are Messrs. Badger, Berrien, Bright, Calhoun, Clarke, Cooper; Corwin, Davis of Massachusetts, Davis of Mississippi, Dawson, Dickinson, Greene, Mangum, Miller, Morton, Pearce, Smith, Spruance, Upham, Wales, Walker, Webster, and Whitcomb. •This motion is taken from the Congressional Globe. It does not appear in the Journal. fThlB proceedinK is taken from the Congressional Globe. It doe» not appear in the Journal. • JAMES SHIELDS. 141 The Hou. James Shields having handed to the Vice-President a letter tendering his resignation, Jlr. Hale ca,lled for the reading of the letter, and, no ohjection heing made, the letter ■was read. Mr. Hale strbmitted the following resolution for consideration: •'licKolvcd, That the Vice-President be requested to inform the executive of the State of Illinois that the Hon. James Shields has this day resigned his seat in the Senate of the United States." On motion by Mr. Berrien, Ordered, That the consideration of the resolution be postponed until to-morrow. Thubsday, diarch 15, 1849. On motion by M-r. Turney that tbe Senate proceed to the consideration of the resolu- tion submitted by Mr. Hale the 14th instant, requesting the Vice-President to inlbrm the executive of the State of Illinois that James Shields has this day resigned his seat in the Senate of the United States, After debate [a debate on the question whether the resolution offered by Mr. Hale or the resolution reported by the committee should be first considered is found on pages 342-346 of the Congressional Globe], On motion by Mr. Davis, of Mississippi, that the motion lie on the table, it was de- termined in the affirmative — yeas 33, nays 14.* On motion by Mr. Douglas, the yeas and nays being desired by one-fifth of the Sen- tors present, Those who voted in the aflBrmative are Messrs. Atchison, Badger, Baldwin, Bell, Ber- lieu, Borland, Bright, Butler, Calhoun, Clark, Cooper, Corwiu, Davis of Mus-sachuseits, Davis of Mississippi, Dawson, Dicliinson, Greene, Hamlin, Hunter, Manifum, Mason, Miller, Phelps, Seward, Smith, Spruance, Sturgeon, Upham, Wales, Walker, Webster; Whitcomb, and Yulee. Those who voted in the negative are Messrs. Cuss. Chase, Douglas, Downs, Felch, Fitzpatrick, Foot^ Hale, Jones, Korris, Rusk, Soul6, Turnfey, and Underwood. On motion by Mr. Mason, the Senate resumed tbe consideration of tbe resolution re- ported by the select committee in relation to the election of James Shields, and, After debate [the debate is found on pages 346, 347, of the Globe], On motion of Mr. Davis, of Mississippi, that it lie on the table, it was determined in the negative — yeas 16, nays 32. f On motion by Mr. Turney, the yeas and nays being desired by one-fifth of the Sen- ators present. Those who voted in the affirmative are Messrs. Cass, Chase, Davis of Mississippi, Douglas, Downs, Fitzpatrick, Foote, Hale, Jones, Norris, Rusk, Soul6, Sturgeon, Turney, Underwood, and Yulee. Those who voted in the negative are Messrs. Badger, Baldwin, Bell, Berrien, Borland, Bradbury, Bright, Butler, Calhoun, Clarke, Cooper, Corwin, Davis of Massachunects, Dawson, Dickinson, Felch, Greene, Hamlin, Hunter, Mangura, Mason, Miller, Morton, Phelps, Seward, Smith, Spruance, Upham, Wales, Walker, Webster, and Whitcomb. [A further debate on the adoption of the resolution reported by the committee is found on pages 347-351 of the Globe.] On the question to agree to the amendment proposed by Mr. Calhoun the 14th in- stant, it was determined in the affirmative. On motion by Mr. Underwood further to amend, the resolution, by striking out the words '' wasvoid," and inserting in lieu thereof the following: "does notentitie him to a seat as such in this body," it was determined in the negative — yeas 16, nays 28. On motion by Mr. Underwood, the yeas and nays bemg desired by one-fifth of the Senators present, Those who voted in the affirmative are Messrs. Atchison, Bradbury, Chase, Davis of Missis^ippi, Douglass, Djwns, Felch, Fitzpatrick, Foote, Jones, Norris, Rusk, Soul6, Sturgeon, Underwood, and Yulee. Those who voted in the negative are Messrs. Badger, Baldwin. Bell, Berrien, Borland, Bright, Butler, Calhoun, Clarke, Cooper, Corwin, Davisof Massachusetts, Davvson, Dick- inson, Greene, Hamlin, Hunter, Mangum, Mason, IVIiller, Morton, Phelps, Seward, Smith, Spruance, Upham, Wales, and Webster. On motion by Mr. Douglas to amend the resolution by striking out all after the word "resolved," and inserting the following.in lieu thereof: "Thatthe Vice-President be requested to notify the executive of the State of Illinois that the Hon. James Shields has resigned his seat in this body," It was determined in the negative- yeas 12, nay§ 32. * The Congressional Globe gives this vote yeas 20, nays 15. t The Congressionai Globe gives this vote yeas 18, nays 32. 142 SENATE ELECTION CASES, On motion by Mr. Douglas, .the yeas and nays being desired by one-fifth of the Sena- tors present, Those who voted in the affirmative are Messrs. Cass, Chase, Douglas, Downs, Fitzpat- rick, FootCj Jones, Eusk, Soul6, Sturgeon, Underwood, and Yulee. Those who voted in the negative are Messrs. Atchison, Badger, Baldwin, Bell, Berrien, Borland, Bradbury, Bright, Butler, Calhoun, Clarke, <^ooper, Corwin. Davis of Massa^ chusetts, Davis of Mississippi, Dawson, Dickinson, Greene, Hamlin, Hunter, Mangum, Mason, Miller, Morton, Phelps, Seward, Smith, Spruance, Upham, Wales, Walker, and Webster. No further amendment being proposed, the resolution was then agreed to, as follo\ys: ' ' Sesolved, That the elegtion of James Shields to be a Senator of the United States was void, he not having been a citizen of the United States the term of years required as a qualification to be a Senator of the United Sta.tes at the commencement of the term for which he was elected." On motion by Mr. Webster, Ordered, That the Vice-President be requested to transmit to the governor of theState of Illinois a copy of the said resolution, attested by the Secretary of the Senate. YULEE VS. MALLORY. 143 [Thirty-second Congress — First session.] YULEE vs. MALLORY, of Florida, January 13, 1851, the general assembly of Florida met in convention to elect aSenator for the term beginning March 4, 1851. A viva voce vote being taken pursuant to the requirements of the consti- tution of the State, 29 members responded. David L. Yulee nnd 29 responded blank, yhereupon the presiding officer declared that there had been no election. January 15 they again met in con- vention, when 31 members responded K. S. Mallory and 27 voted for Mr. Yulee and others, where- upon the presiding officer declared Mr. Mallory to be duly elected. Neither party appeared to take the seat during the special sessionof the Senate in March, 1851. March 8 a letter from Mr. Yulee was read stating that he should contest the seat of Mr. Malloi-j-, declared to be elected. December 1, 1851, the credentials of Mr. Mallory were presented and he took the oath. Oiithe same day the letter of Mr. Yulee with accompanying documents was referred to a select committee of five, August - 21, 1852, the committee reported that there was in force in that State, at the time of the election, the following resolution : "'.Peso/i'cd, That a luajority of all the naembei's-elect com posing the two houses of the general assembly shall be necessary to deterniine all elections devolving upon that body "' ; that this resolution was joint in fact, though not in form, and was sufficient^ though without the forms of law usual in legislation, to regulate the "manner of holding elections"; that the whole number of members-elect in this general assembly was 59, and that Mr. Yulee receiving but 29 votes on the first ballot, did not obtain a sufficient number to elect him ; that they recommen. Preston. C. L. Higbee. Tho. P. Richmond. Oeorge Walker. T. B. Sauner. Dr. H. A. Browne. S. D. Masters. Saml. H. Martin. William J. Allen. B. P. Hinch. SENATORS. A. J. KuykendaU. M. O. Kean. Ben. Graham. John E. Detrich. Silas L. Bryan. EEPEESENTATIVES. Eli Seehorn. James Bradford. Jonathan Dearborn. D. McClain. Frank M. Eawlings. G-. M. Gray. Jona. McDaniel. Wm. R. Morrison. P. E. Hosmer. L. F. McCrilUs. James L. D. Morrison. G. R. Jenngan. A. P. Corder. George H. Holliday. J. R. Bennett. S. W. Moulton. W. N. aine. Presley Funkhouser. James M. Pursley. Hugh Gregg. C. C. Hopkins. Henry Richmond. Credentials of the Hon. hyman Trwmlull, elected a Senator i Illinoia. f ilie legislature of the State of It is hereby certified that, in pursuance of a joint resolution to that effect adopted, the two houses of the general assembly of the State of Illinois, now in session at Springfield in said State, did convene in joint session in the hall of the house of representatives on the eighth day of February, in the year of our Lord one thousand eight hundred and fifty- five, for the purpose of electing a Senator to the Congress of the United States for the term of six years from the fourth day of March, in the year aforesaid, and that Lyman Trumbull was then and there, by said joint session of the legislature of said State, duly elected Senator to represent the State of Illinois in the Senate of the United States for six years from the said fourth day of March next. Dated at Springfield the ninth day of February, one thousand eight hundred and fifty- five. Attest: GEORGE T. BROWN, Secretary of the Senate. Attest: EDWIN T. BRIDGES, ■ Clerk of the House of Sepresentatives. THOMAS G. TURNER, Speaker of the House of Bepresentatives and Presiding Officer of the said joint session. United States of America, , State of Illinois, as; I, Alexander Starne, secretary of state for the State of Illinois, do hereby certify that the foregoing is a true and correct copy of a certificate of the election of Lyman Trum- bull to the United States Senate, as filed in my office by the clerk of the hous&of rep- resentatives. In testimony whereof, I have hereunto set my hand and affixed the seal of said State, this 15th day of February, A. D. 1855. [l. S,] ALEXANDER STARNE, Secretary of State. LYMAN TRUMBULL. 151 Monday, December 3, 1855. Mr. Crittenden presented the credentials of the Hon. Lyman TramhuU, elected a Sen- ator by the general assembly of the State of Illinois for six years from the 4th day of March, 1855; which were read. Mr. Cass presented the protest of certain senators and representatives of the legisla- ture of the State of Illinois against the election of the Hon. Lyman Trumbull. The oath prescribed by law was administered to Mr. Trumbull, and he took his seat in the Senate. Thursday, December 20, 1855. Mr. Trumbull presented a certified copy of a letter of Lyman Trumbull, addressed to the governor of Illinois, resigning the office of justice of the supreme court of that State; which was referred to the Committee oh the Judiciary. On motion by Mr. Cass, Ordered, That the protest of certain senators and representatives of the legislature of Illinois against the election of the Hon. Lyman Trumbull as a Senator of the United States, on the files of the Senate, be referred to the Committee on the Judiciary. [Some remarks on the question whether the subject should go to the Committee on the Judiciary or to a select committee are found on page 58 of the Congressional Globe referred to in the head-note.] Monday, February 4, 1856. The President pro tempore presented a certificate of the governor of Illinois of the elec- tion of the Hon. Lyman Trumbull by the legislature of that State as a Senator in Con- gress, and of his election and appointment as a justice of the supreme court of Illinois, with an extract from the constitution of Illinois respecting the eligibility of judges of the courts of that State to other offices during the term for which they are appointed; •which was referred to the Committee on the Judiciary. [Some remarks on the question of reference of the communication are 'found on page 343 of the Congressional Globe referred to in the head-note. Mr. Seward cited the ad- mission of Hon. N. P. Tallmadge, of New York, as a precedent in favor of the right of Mr. Trumbull.] Wednesday, February 20, 1856. [Some remarks made on Mr. Trumbull's eligibility are found on pages 466-468 of the Congressional Globe referred to.] Wednesday, February 27, 1856. Mr. Butler, from the Committee on the Judiciary, to whom was referred the protest -of certain senators and representatives of the legislature of Illinois against the election -of the Hon. Lyman Trumbull as a Senator of the United States, with other papers, sub- mitted a report (No. 15). The Senate proceeded to consider the report; and, in concurrence therewith, Ordered, That the committee be discharged from the further consideration of the sub- ject. Ordered, That the report, with the accompanying papers, be printed. Mr. Crittenden submitted the following resolution for consideration: ' ' Resolved, That Lyman Trumbull is entitled to a seat in this body as a Senator elected by the legislature of the State of Illinois, for the term of six years, from the 4th of March, 1855." The Senate proceeded, by unanimous consent, to consider the said resolution; and. On motion by Mr. Stuart, Ordered, That the further consideration thereof be postponed to and made the special order of the day for Monday, the 3d of March next. , [A short debate is found on pages 514-515 of the Congressional Globe referred to.] Monday, March 3, 1856. The Senate resumed the consideration of the resolution submitted by Mr. Crittenden, ■the 27th of February, declaring the Hon. Lyman Trumbull entitled to a seat as a Sen- ator of the United States; and. After debate. On motion by Mr. Stuart, Ordered, That the farther consideration of the resolution be postponed until to-mor- row. [The subject is debated at length on pages 547-552 of the Congressional Globe referred to.] 152 SENATE ELECTION CASES. Tuesday, March 4, 1856. The Senate resumed the consideration of the resolution submitted by Mr. Crittenden, the 27th of February, that the Hon. Lyman Trumbull is entitled to a seat in the Senate of the United States; and, After debate. On motion by Mr. Weller, Ordered, Thai; the further consideration thereof be postponed until to-morrow. [The debate is continued on pages 562-567 of the Congressional Globe referred to.] Wednesday, March 5, 1856.- The Senate re.sumed the consideration of the resolution submitted by Mr. Crittenden, the 27th of February, in relation to the rights of the Hon. Lyman Trumbull to a seat in the Senate; and, After debate. On the question to agree to the resolution, it was determined in the affirmative — ^yeas 35, nays 8. On motion by Mr. Toucpy, the yeas and nays being desired by one-fifth of the Sena^ tors present. Those who voted in the afiSrmative are Messrs. Adams, Allen, Bell of Tennessee, Bright, Brown, Butler, Cass, CoUamer, Crittenden, Dodge, Durkee, Evans, Fessenden, Fish, Foot, Foster, Geyer, Hale, Hamlin, Harlan, Houston, Hunter, James, Mallory, Mason, Pearce, Eeid, Rusk, Sebastian, Seward, Sumner, Toucey, Wade, Wilson, and Yulee. Those who voted in the negative are Messrs. Clay, Iverson, Johnson, Jones of lowa^. Pugh, Slidell, Stuart, and "feller. So it was Sesolved, That Lyman Trumbull is entitled to a seat in this body as a Senator elected by the legislature of the State of Illinois for the term of six years from the ^th of March, 1855. [The debate is concluded on pages 579-584 of the Congressional Globe referred to. J [Extracts from a speech of Mr. Crittenden, of Kentucky, delivered March 3, 1856, in support of the legality of Mr. Trumbull's election, taken fi'om pages 547 and 548 of the Congressional Globe referred to in the head-note.} " The facts of the case are few and undisputed. Mr. Trumbnil was, in point of fact, chosen by the legislature of Illinois as a Senator in this body. It is true that some four years before that time hehad been elected a judge of one of th6 circuit courts of that State, but it is also true that he had resigned thatoffice about eighteen months before his election as a Senator. The first question, therefore, that presents itself is, whether upon these facts, and a proper construction of the constitution of the State of Illinois, he is entitled to his seat? No objection is made to any qualification required by the Constitution of the United States. The question is, whether there is anything in the constitution of Illinois which can invalidate his election. I will first consider the question as it arises upon the constitution of Illinois, and then as respects the Constitution of the United States. The provision of the constitution of Illinois I desire to read to the Senate. The tenth section of the fifth article of the constitution of that State reads in these words: " 'The judges of the supreme court shall receive a salary of $1,200 per annum, payable quarterly, and no more. The judges of the circuit courts shallreceiveasalary of $1,000 per annum, payable quarterly, and no more. The judges of the supreme and circuit courts, shall not be eligible to any otlier office or public trust, of profit in this State, or the United States, during the term for which, they are elected, nor for one year there- after. All votes for either of them for any elective office (except that of judge of the supreme or circuit court) given by the general assembly, or the people, shall be void.' ^ ' Mr. Trumbull was elected on the 7th of June, 1852, judge of the circuit court for the term of nine years. Having held that office less than one year, he resigned on the 19th of May, 1853, to take eifect on the ensuing 4th of July. He was elected to the Senate of the United States on the 8th of February, 1855, more than eighteen months after his resignation, but before the expiration of the nine years for which he had been originally elected a judge. "To these facts we are to apply the constitutional provision which I have read, which declares that no judge of the supreme court or circuit court should be eligible to any other office for the term for which he was elected, and for one year thereafter. Does this prohibition in the constitution of Illinois apply to such a case as this? I say that it does not. In order to ascertain the meaning of any instrument, we must endeavor to ascertain the intention of its framers. What was the intention of the Iramers of this provision? It was to preserve the independence of their judiciary, and to prevent tha LYMAN TKUMBULL. 155 possibility of one of the judges of the State using the influence of that office to obtain another. That is the reason and the sole reason for this prohibition ; and to aocomplishi this object, the constitution of Illinois provides not only for ineligibility during the term. of nine years, but for one year thereafter, lest he should, by anticipated contrivances, intrigues, and influence, provide for another office by the use of the influence vfhich hi» present office affords. One year after the expiration of his office was supposed to be suf- ficient for that purpose. " Now, sir, suppose I am wrong; suppose that, without any reason, without any mo- tive, without any mischief to be suppressed, without any foundation for any of the ob- jections applicable to the incumbent of office, this constitution shall, by the force of it» mere letter, be applied to this case, and that it does create, so far as it can act, an im- pediment, an obstacle to the election of this gentleinan, is such a provision valid, or cau it affect his right, when we look to the Constitution of the United States under which the Senate has been created? I think clearly not. We are to look to the Gonstitutioa of the United States for the whole frame of this Government. It has created all the powers and all the instruments of this Grovemment. It has created the Senate. Before this creation, neither the State of Illinois as such, nor any other State in the Union, had any power to elect a Senator. There was no such office to be filled by them as Senator of the United States. Their agency was simply employed by the Federal Constitution. The agency of the legislatures of the several States was employed to elect Senators who constitute this body. It is an all-important branch of the Government. The designatioa of the power that was to elect, the designation of the persons qualified to be elected, all entered into the very essence of the subject. All this was to have its influence on this. Government. All and every single circumstance of this was to have its influence in connecting the State governments and the General Government, and in connecting them, in such a way as to preserve that species of political relations between them which it was. thought would operate most advantageously to all. ' ' This was the view of the framers of the Constitution of the United States. It was a subject for them whether the legislature should elect Senators, whether the people should elect them, or whether the governors of the several States should appoinj them. All this was within the competency of the framers of the Constitution. Neither people,, nor governors, nor legislatures had previously any power to elect or appoint a Senator. There was no such officer; there was no such power. The whole was a new crea- tion. The Constitution determines that the power to choose Senators shall be in the legislatures of the several States. The power to elect Senators was committed to the legislatures. Who shall they be, was the next question. The question was, how to- designate a Senator by some prescribed qualification, so as to fix the class from which he should come. Shall he be a man who is required to possess any particular amount of" fortune? Shall he be a man who must be subjected to some religious t«st? Of what, age shall he be ? "Were not all these points fairly piesented to the framers of the Constitution of the United States? Were they not important questions to be acted upon and decided?, They were framing the Government. The constitution of this body was an essential part of the Government. That was to depend on the parties, or the condition of the parties, out of whom they would make this great council of the nation. Should he be a citizen? Might they select him anywhere? Should he be an inhabitant of his State? Might he be of any age? ' ' All these subjects being considered, the Constitution of the United States decides upon the whole matter by providing that each Senator shall be of the age of thirty years, shall have been at least nine years a citizen of the United States, and shall be an inhab- itant of the State from which he is chosen. "Now, sir, does this not embrace the whole subject? Does it not regulate the whole subject ? According to the plain meaning of the Federal Constitution every inhabitant of a State, thirty years of age, who has been nine years a citizen of the United States, is- eligible to the office of Senator. What mo.re can be said about it? It is now supposed by those who contend that Mr. Trumbull is not entitled to his seat, that it is competent for a State, by its constitution — and I suppose they would equally contend by any law which the legislature might from time to time pass— to superadd additional qualifica- tions. The Constitution of the United States, they say, has only in part regulated the subject, and therefore it is no interference with that Constitution to make additipua,! regulations. This, I think it will be plain to all, is a mere sophism, when you come ttv consider it. If it was a power within the regulation of, and proper to be regulated by, the Constitution of the United States, and if that Constitution has qualified it, as I have stated, prescribing the age, prescribing the residence, prescribing the citizenship, Was- there anything more intended? If so, the framers of the Constitution would have said so. The very enumeration of these qualifications excludes the idea that they intended 154 SENATE ELECTION CASES. any other qualifications. That is the plain rule of ordinary construction; but, fqr a reason above all technical considerations, it is aijplicable here. The object of the Fed- -eral Constitution was to have a body framed by a uniform rule throughout the United States, coming here to constitute this great council of the country-^— coming here by the -agency of the same elective power, the State legislatures — coming here under the same requirements, and with the same qualifications — and standing here upon a perfect and exact equality in all respects to represent the nation justly and equally, and with a sole regard to the common welfare of the Kepublic." ^Extract from a speech of Mr, Puprh, of Ohio, adverse to the right of Mr. Trumbull, delivered March 3, 1856, taken from pages 549, 550 of the Congressional Globe referred to in the head-note.] "The Senator from Kentucky claims, in Mr. Trumbull's behalf, that the Constitution -of the United States has prescribed the qualifications requisite for a Senator, and that no State can add to or subtract from those qualifications. ' ' I am not disposed to try the virtue of this conclusion by logical tests ; I deny the truth of its premises. The Constitution of the United States does not prescribe the qualifica- tions of a Senator in the sense here assumed. Its language is that of exclusion, and iiot of qualification: ' ' No person shall be a Senator who shall not have attained to the age of thirty years, -and been nine years a citizen of the United States, and who shall not, when elected, be «n inhabitant of that State for which he shall be chosen.' ' ' In this instance, as in all others, the language of the Constitution was aptly selected with a view to the nature of our Federal Government. It was intended that each Sen- ■ator should be thirty years of age, and should have been nine years a citizen of the United States, because the duties of his ofiSce were thought to require an experienced judgment and considerable familiarity with the course of public affairs. And to secure the election of Senators from all extraneous influence, such as might have been appre- ihended perhaps from the dictation of the large States or the patronage of the Federal Government, it was furthermore declared that each Senator should not merely be a citi- -zen but an actual resident — 'inhabitant' — of the State for which he is chosen. ' ' I agree that no State can dispense with or subtract from the requisites prescribed in "the Federal Constitution ; but I can see no pretense for asserting that the States may not superadd any qualification which is consistent with those requisites. A Senator is ■an officer of the Federal Government; he is also an officer of his own State. He is elected to represent the people of the State, in an aggregate and organized capacity, as ■one of the sovereign parties to our Federal compact. He is elected, to be sure, by the legislature; but the legislature is itself a body of representatives chosen by the people. His constituency is equal to that of all the members of the legislature taken together. It consists of the people at large acting through counties, districts, or other established subdivisions, and thus expressing the will of the State as a public corporation. While the Federal Constitution might prescribe certain requisites, therefore, in order to secure the interests of the Federal Government, the rights of the citizens of all the States, and the welfare of the whole Union; while it might well do this and bind each State to an observance of such requisites, no reason can be assigned why the people of a State — whose peculiar representative and officer in equal degree their Senator is — might not presfcribe other qualifications, in addition, for the purpose of protecting "their separate interests, rights, and welfare. I agree, of course, that such additional requisites must ,not only be consistent with those specified in the Constitution of the United States, but with the whole spirit and tenor of that instrument. No mischief can resul t to the Union ■or to other States from this course of decision; and it leaves to the States that degree of independence, that reservation of powers, which the tenth amendment to the Constitu- tion so plainly inculcates. "There is no conflict between the Constitution of the United States and the constitu- tion of the State of Illinois. They are perfectly consistent. Now, so far as my learning «xtends there is noprinciple more firmly established in the law of England and of America than this: that whenever two enactments can stand together — whether they be called constitutions, statutes, or by what name soever — ^they shall stand together, and both shall be obeyed. " It is suggested, however, that the legislatures of the States derive their power of elect- ing Senators from the Constitution of the United States and not from their respective State constitutions. But this, if admitted to its full extent, wiU be found immaterial. It is not a power conferred on any legislature as matter of gift or permission from the Federal Government, but as a matter of right, and because the legislature represents the people and acts only as an agent for the people. Surely, I submit, the Constitution of the United States never designed to exalt the agent above the principal, the creature «,bove the creator, the minister above the sovereign, as this proposition assumes." JAMES HARLAN. 155 [Thirty-fonith Congress— Third session.] JAMES HARLAN, Senator from Iowa from March 4, 1855, to January 12, 1857, and from January 29, 1857, till May 15, 1865, when he resigned. December 13, 1854, the legislature erf Iowa met in joint convention in the hall of the house of rep- resentatives for the purpose of electing a United States Senator for the term beginning March 4, 1855. After several ineflectual ballots and adjoui'nments they met January 5, 1855, and adjourned to 10 o'clock of the next day. After this adjournment of the joint convention the senate returned to -its own chamber and adjourned to the same hour. When the senate met January 6, it at one adjourned till 9 o'clock, Jauuaiy 8. The senate, therefore, not beingin session after 10 o'clock on January 6, did not proceed to the hall of the house as'a body, though certain members of the senate attended. The body thus assembled consisted of a majority of the house and a minority of the members of the senate, together constituting a majority of the members of the convention. They proceeded to ballot, and Mr. Harla.n received 52 votes (52 being a majority of the members of the joint convention), and was declared duly elected. The senate of lowasentresolutions to the United Staites Senate protesting against the validity of the election. Mr. Harlan was admitted to the seat December 3, 1855, the first day that Congress met in the term for which he was elected. December 15, 1856, the subject was referred to the Committee on the Judiciary. January 5, 1857, the commit- tee reported the proceedings of the Iowa legislature and the resolution " that the seat of the afore- said gentleman be declared vacant," which resolution passed the Senate January 12, 1857, by a vote of 28 yeas to 18 nays. The question to be decided bythe Senate, which wasdebated at greatleugth, was whether the body electing Mr. Harlan was the legiHtature of Iowa within the meaning of the first clause of the third section of Article I of the Constitution ; vphether it was essential to the va/- lidity of the election that the senate as abody should be present, or whether a majority of the indi- vidual members of the convention constituted the legislature even if the senate as a body was not present, nor even a majority of the members composing the senate. Extracts from speeches, which are given below, give a full statement of the facts and points discussed by the Senate. The history of the case here given consists of an extract from a speech of Mr Bayard, of Dela- ■ware, in support of the resolution reported by the committee, taken from page 249 of the Congres- sional Globe, 3d sess. 34th Cong., 1856-'57; an extract from a speech of JVIr. Seward, of New York, in opposition to the resolution, taken from pages 260, 261 of the same volume : a transcript of the pro- ceedings of the Senate relating to the case from Senate Journals, 2d sess. 33d Cong., 1st and 2d sess, 34th Cong., and 3d sess. 34th Cong. ; and the report of the committee from Senate Reports, 3d sess, 34th Cong., Report No. 300. The debates in the case are found in the Congressional Globe, 3d sess., 34th Cong., 1856-'57. .Special references to the debates of each day are inserted below. [Extract from speech of Mr. Bayard delivered January 7, 1857.] ' ' The substantial facts of the case I understand to he these: A resolution yrjas passed in the house of representatives of Iowa on the 13th of December, 1854, proposing to the senate of Iowa to meet in joint convention on the 15th of December for the purpose of electing a Senator of the United States. The resolution -was amended by the senate by fixing 2 o'clock or 2.30 o'clock of the same day for the joint meeting. The house concurred in the amendment, and the bodies went into joint convention on that day, a quorum of each house being present when they met. They proceeded to ballot, and having balloted ineffectually they adjourned -at various times — on one. occasion, I think, from the 14th of December, 1854, to the 5th of January, 1855. On the 5th of January they met, and still failed to elect a Senator. They adjourned to 10 o'clock on Saturday morning, the 6th of January. The senate (as throughout the whole of these proceedings it appears each house did) after they separated returned to their own cham- ber and adjourned to the same hour on the next day. Wheji the senate met at 10 o'clock on the 6th of January they, without doing any business whatever, adjourned to Monday at 9 o'clock. This adjournment was carried by a vote of the majority, on the yeas and nays — 16 to 15 — the whole body, consisting of thirty-one members, being present. The senate of Iowa was, therefore, not in session on Saturday after 10 o'clock. "The house of representatives met — at what hour I do not know; but after transact- ing appropriate business as a house of representatives they proceeded to receive, not the senate of Iowa, which was not in session, but to receive members of the senate of Iowa as members of the joint convention; and when those members were assembled there, to- gether with the members of the house, they constituted a majority of the two branches combined, that is, a majority of the whole number of persons in the convention. But there was present — I speak now of persons present in the sense of legal presence, as evi- denced by the vote — only a majority of the house and a minority of the senate, a quorum of one body and not a quorum of the other. The speaker of the house assumed that the members thus assembled were a regularly-organized convention of the legislature with the power to elect a United States Senator. No vote was taken by the convention 156 SENATE ELECTION CASES. on that point. An appeal was taken from the decision and it was contended that the house ought to decide whether it was organized. That appeal the speaker denied, and there was no vote taken by the convention on that question at all. The loll was called, and as a majority of the members of both branches (not^a majority of each branch) an- swered to their names the speaker declared that the joint convention was regularly organized according to its adjournment, and they proceeded to vote for a United States Senator. After electing first a teller in iieu of the senate teller, who was absent, and also a president j>ro tempore of the convention-, the members proceeded to vote viva voce for a Senator of the United States. A majority of the members of the houseof representative.s voted, but only fifteen senators voted on that occasion. ' ' These are the real facts of the case as they appear from the joumaJs and papers. On the vote to which I have just alluded being talten, it was declared that the honorable gentleman who now holds the seat was regularly elected to the Senate of the United States; and he came here and was admitted. The senate of Iowa met on the Monday morning next after the adjournment of Saturday, and after this alleged election bad taken place, and their first act was to protest against it as done without their authority as a co-ordinate branch of the legislature of Iowa. ' ' It will be observed also from the facts of this case that the journals show that on all occasions when the two houses met they met as houses; a message was sent from one house to the other. The record shows that the senate, preceded by its president, came to the hall of the house of representatives, and the members of the senate had seats as- signed them as a co-ordinate branch of the legislature; and after that was done, at all previous meetings, they proceeded to vote. On this occasion there was no senate in ses- sion; but the record shows that several members of the senate, without saying how many, were present. The fact is conceded, I understand, that there were but fifteen members of the senate who voted on that occasion, the whole senate consisting of thirty-one; and hence less than a quorum of the senate participated in the election. ' ' Pn this state of facts the question which I suppose to arise is, whether ' the legislature ' of a State, under the language of the Federal Constitution delegating to the legislature the right to elect Senators of the United States, is to be taken to mean the individual members of the legislature or the body or bodies of which the legislature is composed. I suppose the t«rm as used in the Constitution means the bodies of which Uie legislature is composed. The honorable Senator from Georgia, if I appreciate his argument, insists that' the power being delegated to the legislature is vested in the members of the legis- lature, and that whenever a majority of the members of the whole legislature under a law such as that existing in Iowa vote for a man he is elected, though one of the co- ordinate branches of that legislature may not vote for him, and may, as a body, refuse to go into an election. Sir, I hold it to be a principle of law, which has, I think, no ex- ception that where two integral bodies are authorized to do an act it cannot be dona without the consent of those two integral bodies. They must both be present and act in the matter or there can be no validity in the act done. This is a universal law. I can call to mind no case where a contrary principle prevails, whether relating to legisla- tive action or corporate action. Indeed, in reference to corporations it has been decided over and over again that where there are two integral bodies who must concur in an act they must both be present and act upon the matter as bodies, not as individuals," [Extract from speech of Mr. Seward delivered January 9, 18S7.] " The objections rest on these grounds: "First. That the legislature of Iowa consists of two co-ordinate branches. ' ' Second. That it can do no valid act without the co-ordination and co-operation of both of those branches, each acting, or at least appearing in the transaction distinctly by a majority of this branch, or a quorum of it. ' ' I think the objection is unsound. The legislature of Iowa sustains double relations- one a local one, as the law-making authority of Iowa; the other. Federal, ah electoral college to choose Senators in Congress from Iowa. In the one relation, it acts exclu- sively under the constitution of Iowa; in the other, exclusively under the Constitution of the United States. I may concede that in the former relation it must act by inde- pendent co-operation or co-ordination of both houses in all cases. " I admit that the regulations, which are under review, do require the two houses to resolve themselves into one common body, in which the separate identity or individu ality of those separate branches is extinguished, for the purpose of choosing a Senator in Congress. And that, when the merger has been made, and the convention constituted, it is independentof eachof the two branches, and as to that transaction supersedes them both, and cannot be terminated or arrested by its own act, or by the concurrent and co-ordinate action of the two houses, being a creation of both. "In this view, the appearance of the senators in their collective capacity at the conven- tion was merely formal, proper in itself, but of no essential value; and the failure of the JAMES HARLAN. 157 Senators to practice the same form cannot vitiate the election, nor can the subsequent protest of the senate. " It is alleged that such a complete extinguishing of the two houses of the legislature ia unconstitutional.^ " But it is too late to raise that question. Legislatures in the States are divided into two distinct houses, whose members differ generally in qualifications or in terms of serv- ice, to secure <}elay and deliberation arid moderate collision in acts of legislation. But this very delay, deliberation, and collision practically disqualifies such bodies from acting as an electoral college. " It was found necessary in the very beginning of the Government to provide for bring- ing the two branches of the legislature to an agreement in that case. "The expedient adopted was the simple one, probably the only practicable one, of, merging the two houses into one, for this purpose. The expedient has been adopted in nearly all the States, and is used either in the first instance, as in Iowa, or a last alterna- tive, in case of disagreement, as in New York, Georgia, and Virginia. It has been acqui- esced in by the Senate of the United States from the first, and is therefore settled and constitutional. ' ' Nor is it without reason. The legislature of a State is merely a college of suffragans interposed between the Senate of the United States and the people of the States. The choice of the legislature is the indirect choice of the people of the State. ' ' The function of choice is in no sense one of a legislative nature. It is an extra-legis- lative act, an executive transaction, an action, so to speak, ex officio. The Constitution of the United States gives supreme right to Congress to prescribe in what manner the legislature of a State shall perform that act independently of all State constitutions. ' ' The Congress of the United States has pracMcally waived this right, and devolved that duty on the legislature of Iowa, as it was aut mrized to do by the Constitution of the United States. ' ' The manner prescribed by the legislature of Iowa does not conflict with any article of the Constitution of the United States. It would not be at all affected by any conflict with the constitution of Iowa, insomuch as no control over the subject whatever resides in the people of Iowa by whom the constitution was made. "Mr. Pre$ident, this transaction is a. judicial one. I have approached it, I trust, free from partiality or prejudice. The question is an important one. The decision may be drawn into a precedent to affect hereafter the rights of sixty States, and the safety, wel- fare, and union of this confederate Republic hundreds of years hence, when this people shall number, not as now by tens, but by hundreds of millions. "I therefore confine my judgment to this case as it stands on the facta. I do not pre- judge other cases which shall present other facts, nor lay down principles for other and extreme cases. I can foresee possible abuses to come from a misapplication of the prin- ciples I have adopted. But abuses will attach themselves to all principles as barnacles will to the smoothest and strongest bottoms. " I repose on my conclusion with the more confidence because it is one which tends to secure the Senate, and through it the Federal Government, against the efforts of faction and of ambition to disorganize the Union and subvert the republican Government here, which is the chief guarantee of civilization everywhere. " Saturday, March 3, 1855. The President jjro tempore laid before the Senate a letter of the president of the senate ro tempore of the convention. " The president of the senate still being absent, " The speaker of the house of representatives in his chair, and the clerk of the house ■of representatives acting as secretary of the joint convention, "The roll of the convention was called, and the following members of the convention •did not answer to their names, to v^it. [Here follow the names of forty-four members.] "On motion of Mr. Eussell, "The sergeant-at-arms was directed to notify members of the convention who had not ■answered to their names that the convention was now convened, and to request their -attendance. "Senators Eamsay and Thurston appeared on the floor of the convention and desired to be considered as not acting in the convention. "The sergeant-at-arms reported that he had performed his duty, as required by the ■convention; that a few of the members he could not find. " On motion of Mr. Conkey, ."Further proceedings under the call were dispensed with. "Mr. "Workman, teller on the part of the senate, being absent, "Mr. Needham was appointed in his stead, " Mr. Kinert acting as teller on the part of the house. "The convention proceeded to the election of a second associate judge of the supreme * Messrs. Folk, Johnson, and Bright were also expelled in the second session of the Thirty-seventh Congress. These cases were referred to a committee and reported on and are given as separate cases on pages 213, 215, 217. See also cases of Messrs. Wigfali, Stark, and Powell, pages 199 220 234 The history of these expulsion cases here given consists of a transcript of the proceedings of the Senate relating to them from Senate Journals, 2d sess. 36th Cong., and 1st and 2d sess 37th Cone Special references to the debates are inserted below. , ' [Second session of the Thirty-sixth Congress.] Tuesday, jamiary 22, 1861. The Vice-President stated that no notice had been taken in the .Journal of the with- dravv^alt from the Chamber on yesterday, and that no paper had been filed with the Presiding Officer by those Senators notifying him that they had withdrawn from the Senate; and that he would like some instruction as to what vacancies exist in the com- mittees, and whether the names of those Senators should continue to be called in taking the yeas and nays. Mr. Benjamin submitted the following motion: Ordered, That the Journal of the proceedings of the Senate be so corrected as to record the fact that the Senators from the States of Florida and Alabama, and the Hon. Jefifer- son Davis, Senator of the State of Missi.ssippi, made announcement that the said States of Florida, Alabama, and Mississippi, had seceded from the Union, had resumed the powers delegated by the said several States to the United States of America, and that they, the said Senators, considered themselves by reason of said action of said States as being no longer entitled to retain their seats as Senators, and accordingly thereupon with- drew from the Senate. The Senate proceeded to consider the said motion; and On motion by Mr. Douglas to amend the same by striking out all after the word "ordered," and in lieu thereof inserting: "That Jefferson Davis of Mississippi, Stephen R. Mallory and David L. Yulee of Florida, C. C. Clay and Benjamin Fitzpatrick of Alabama, having announced to the Senate their withdrawal from the same, " Ordered, That their names be stricken from the list of Senators, and the Secretary directed no longer to call the same." After debate, , On motion by Mr. Seward that the motion of Mr. Benjamin and the proposed amend- ment lie on the table, Mr. Benjamin raised a question of order^ to wit: Whether it was in order to move to lay upon the table a motion to correct the Journal of the Senate of the preceding day; and ' The Vice-President decided that the motion was in order; and On the question to agree to the motion of Mr. Seward, it was determined in the affirm- ative — yeas 32, nays 22. * This preamble and resolution was revoked and annulled, so far as Mr. Sebastian was concerned, by resolution of the Senate, March 3. 1877. See report No. 513. 1st sess. 44th Cong. The same reso- lution provided for settling the unpaid aooounts of Mr, Sebastian. t The remarks of the Senators on their witb4r»iy»l V6 fpupd on pages 484-4S7 of the Pongres- t\gx\a\ G}Qbe, part J, Zany party or political grounds. The priviliges of ii seat in this body are certainly of too high a character to be involved in any matter of party, and I should hope that in the consideration and in the decision of this question vpe shall rise above all such views, and discuss it and determine it upon far more elevated grounds. " The Constitution provides for the qualification and the manner of the election of members of this body. It provides, in the third section of the first article, that' each State shall be entitled to two Senators; and, in other parts of the instrument, provision is made in respect to the necessary age, to be not less than thirty years; that no person shall be eligible who has not been nine years a citizen of the United States; and, finally, it provides that Senators, like other oflicers, executi^'e and judicial, of the United States, shall take an oath or affirmation to support the Constitution. "These are substantially the requirements of the Constitution in regard to members of this body; and I take it it is implied that a Senator of the United States shall owe '. allegiance to the United States; that this shall be his country; that he shalV either be a native-born or a naturalized citizen; and that, if not native-born, he shall have been at . least nine years a, citizen before he is eligible as a member; clearly manil'esting the idea, that a man shall become thoronghly American in thought and feeling before holding a seat in this body. "It is not, however, on any technical grounds, as I suppose, as to citizenship, that the Senator from Texas isobnoxious to objection. I supposehewas a native-born citizen of the United States, and I sippose he was duly elected a member of this body; and i do not suppose that when he spoke of himself as a foreigner he meant that he was born out of the jurisdiction of the country, but that he had another meaning in his mind,, which he probably would define more readily and perfectly than I. could. Still, Mr! President, it seems to me that this body owes it to itself not to allow members to sit here who avow that they are foreigners, who avow that they owe no allegiance to this Government, who avow that they belong to a foreign government; and if that govern- ment happens to be in arms against this Government, attacking its troops, seizing itg property, expelling from its territory officers and soldiers of the United States by force, tearing down and trampling in the dust the national flag, treating with scorn and con- tempt every emblem of our country's authority and power, there may be additional rea- sons why such avowals and declarations should not be passed idly by. What, beside entire contempt of the body, do such declarations indicate, uttered on the floor of the Senate ? "I felt it due to myself, as a member of this body, that we should inquire and decide whether it was consistent with our duty as members of the Senate of the United States to allow one so circumstanced, and avowing such feelings and opinions, longer to hold a seat here. I Scarcely need say that I have no personal feeling on the subject. I can say with entire truth that so far as my personal relations with the Senator from Texas are' concerned they have been entirely kind and friendly. I "stated that this was not a party question, so it certainly is not a personal question, and I certainly shall endeavor to pre- vent its becoming one. If other members of the body think that it is right and proper for a man avowing these opinions to continue, to sit here, I shall have done my duty, and shall feel relieved from a responsibility which I felt pressing upon me previously to offer- ing the resolution. I could not, as it seemed to me, discharge my duty without offering it, and presenting the question distinctly to the decision of the Senate. "The Senator from North Carolina has suggested a substitute for the resolution; and the question, I suppose, is first on the substitute. The substitute assumes the right of a State to secede from the Union, and it assumes that the State of Texas has seceded, and therefore, as a logical inference, that she is no longer entitled to representation in this body. I must be so unfortunate, if it be unfortunate, as to differ from the Senator from North Carolina in regard to the whole theory of our Constitution and Government. I do not believe that any State of this Union has any right, any power, under the Consti- tution, to secede, to take itself out of the Union of these States, which go to make up the United States of America. I differ widely and radically from all who entertain any such view of our Constitution and Government as that, and it appears to me to be a claim altogether monstrous. That this Government is one of power and authority that no State in this Confederacy has any right, under the Constitution, to go out and cease to be a member of this Federal Union, is a proposition which is to me as clear as anything can be which is not absolutely self-evident. I am not, however, about to enter into an argument on the question. I am persuaded that if I were to endeavor to convince gen- tlemen who entertain the opposite view, and many do, whose opinions perhaps ou^ht to be more weighty than minCj I should not be able to succeed in convincing them of their error. "We entertain so, precisely opposite and anto^onistic views of law and Govern- ment and our Constitution, that any argument of mine or any reasoning of mine would be wholly lost upon them, as I am free to say theiis would be on me, We might just LOUIS T. WIGPALT., 201 as well reason ^vith eacli other iu a foreign language, which the one understood and (he other did not, and we should succeed just as well in convincing each other of our error on the one side and of the correctness of the opposite opinion. ' ' [Extract from remarks made in the Senate, March 11, 1861, by Mr. Clingman, of North Carolina, against the adoption of the resolution submitted by Mr. Foster, taken from pages 1448, 1449 of the Congressional Globe referred to iu the head-note.] "Mr. President, I think the Senator froin Connectiont has made a very good argu- ment against his ov?n resolution. If his argument he true, 1 think it is concluoive that his resolution ought not to be adopted; but there is a misunderstanding, perhaps, be- tween us in relation to the facts. If we are to credit the newspapers, the State of Tcxa.s has called a convention, and that convention has passed an .ordinance of secession, and submitted it to the people, and it has been ratified, it is stated, by a very large vote. That is the opinion entertained by the Senator from Texas, and it is my opinion about the facts, and probably the opinion of most gentlemen here. If that be true, and that be a valid act, and the State of Texas be no longer one of the United States, clearly my ■ resolution is proper enough, and not the resolution of the Senator. When we decide for any cause of law or fact that a person upon this floor, claiming to be a Senator, is not entitled to a seat here, he is never expelled. How was it when, a few years ago, the Senate decided that a Senator from Iowa, who claimed a seat, was not entitled? Did anybody propose to expel him? Repeatedly the Senate and House of Eepresentatives have decided that those who came here and attempted to act as members of the body were not entitled to seats; but nobody ever thought of expelling them on that ground. ' ' I need not, I am sure, dilate on this point of view ; for I take it for granted the Sen- ator agrees with me that if the State of Texas has in fact ceased to be one of the United States we should simply say so, and declare that she is not longer entitled to be repre- sented. But the Senator argues that this act is invalid. Take it to be true; suppose Texas has no right, no power, to secede, and in fact has not seceded: then the Senator before me [Mr. Wigfall] is entitled to be here as a member of the body, unless youargue that his erroneous opinion upon that fact disqualifies him. Now, let us look at it for a moment. The Senator from Texas thinks that his State has seceded, and that he is no longer a Senator. That is his opinion as a matter of constitutional law. The Senator from Connecticut, on the other side, says that he is mistaken in that point. Well, sir, was it ever pretended that you would expel a Senator for a mistake upon a legal ques- tion? I ask Senators all around, was it ever maintained, that because a Senator diflered with a majority upon a constitutional question, however important, that was a reason for expelling him from the bod,y? I do not think so. The Senate may overrule him; they may take such action as to show him that in their judgment he is mistaken, and then be may feel bound to copform to their action, and may- do so. ' ' The Senator from Connecticut says that secession is a monstrous idea. I admit that you might expel a Senator, perhaps, for having some monstrous idea, which showed tliat he was not capable of acting as one of the body. If, for example, a Senator were to en- tertain the opinion that the moon was made of green cheese, or some other absurdity, we might come to the conclusion that he had not intellect enough to act upon this floor as a Senfl.tor, and that therefore he ought to be driven off it; but will anybody pretend that this opinion of my friend from Texas stands in that category? Have not twenty Senators, perhaps, during the past session, declared on this floor that they entertained that very idea? The whole State of Virginia, I believe, "the mother of States and of statesmen," as she is called, almost without division of opinion, has always maintained * that position. Without knowing what either of the Senators from Virginia would say,, I take it for granted they both agree with the Senator from Texas. " If it is an error, therefore, on his part, to believe that a State has a right to secede,, and you can expel him for that reason, why not expel the Virginia Senators; why not. expel the others who have expressed that opinion; and especially, why not expel those gentlemen who have declared it and gone away? Why is it that their names are called from time to time as Senators in this body? They have avowed the same opinion in quite as strong language as my friend from Texas, and they have acted upon it and gone away, and left us sometiines without a quorum, shown an utter defiance and disregard of theopinions which the Senator from Conneqlicutavows. Why not extend it to them V "But the Senator alludes to thefact that the State of Texas has taken possession of some of the public property, and perhaps expelled the armies of the United States. Is; that a sufficient reason for expelling her representatives here ? If that be a good reason,. it applies with" more force to the other States. I ask that Senator how it is that he allows, the name of Jeflerson Davis to be called here, and makes no motion to expel him? He claims to be the head of a foreign government. Not only has his State seceded; not only has he advised taking possession of the forts; but he is the commander-in-chief of the army and the president of another republic, and yet he is a " marvelously proper ' ' Sen- ator- there is no motion made to expel him. I should like to knowupon what principle it is!" 202 SENATE ELECTION CASES. LThirty-seventh Congress — First session.] WAITMAN T. WILLBY AND JOHN S. CARLILE, of Virginia. July 13, 1861, the credentials of Mr. Willey, elected to fill the unexpired term ending March 3, 1863, .of James M. Mason, expelled, and the credentials of Mr. Carlile, elected to fill the unexpired term ending March 3, 1865, of KobertM. T. Hunter, expelled, were, presented. A motion was made, that the credentials be referred to the Committee on IheJudiciary. - The credentials stated that the elec- tion had been held July 9, 1861, and that it had been '' to fill the vacancy which has happened by the withdrawal and abdication " of the two preceding Senators. The motion to refer the creden- tials was not agreed to, and, after debate, the oaths were nddiiniis{ered. Some Senators maintained that by admitting Messrs. Willey and parlile to their seats the Senate would be undertaking to recognize a governmento.f the State which was not the regular State government, even though that State government were in' a state of rebellion ; and that the Senate was bound to recognize the fact . ilhat the term of ofiice of the governor who was in rebellion had not expired, and that the creden- tials were not signed by liim, but by another as governor. Othei-s favored reference to a committee on tbe ground that at the time of the election, July 9, 1861, there was no vacancy in the Senatafrom Virginia, inasmuch as Messrs. Mason and Hunter had not been expelled until July 12, and that the Senate had recognized them as Senators until that day by its action in expelling them at that time. - Extracts from speecbes given below will show more at length the grounds upon which Senators proceeded."* , - / The history of the case here given consist^ of a transcript of the proceedings of the Senate relating to it from the Senate Journal, 1st sess. 37th Cong., with extracts from remarks by Messrs. Bayard, Saulsbury, and Trumbull. The debates are found on pages 103-109 of the Congressional Globe, 1st sess. 37th Cong. Satueday, July 13, 1861. Mr. Johnson, of Tennessee, presented the credentials of the Hon. -John S. Carlile, elected a Senator by the legislature of the State of Virginia "to fill the vacancy which has happened by the withdrawal and abdication of Eobert M. T. Hunter;" which were read. Mr. Johnson, of Tennessee, presented' the credentials of the Hon. Waitman T. Willey, elected a Senator by the legislature of the State of Virginia "to fill the vacancy which has happened by the withdrawal and abdication of James M. Mason;" which were read. On motion by Mr. Bayard that the credentials of the Hon. Mr. Carlile and the Hon. Mr. Willey be referred to the Committee on the Judiciary, it was determined in the negative — yeas 5, nays 35. On motion by Mr. Powell, the yeas and nays being desired by one-fifth of the Senators present, Those who voted in the affirmative are Messrs. Bayard, Bright, Polk, PoweU, and Sanlsbury. . Those who voted in the negative are Messrs. Anthony, Bingham, Browning, Chandler, Clark, CoUamer, Cowan, Dixon, Doolittle, Fessenden, Foot, Foster, Grimes, Harlan, Harris, Howe, Johnson of Tennessee, Kennedy, King, Lane of Indiana, Lane of Kansas, Latham, McDougall, Morrill, Pomeroy, Rice, Sherman, Simmons, Sumner, Ten Eyck, Trumbull, Wade, Wilkinson, Wilmot, and Wilson. ■ So the motion of Mr. Bayard was not agreed to. The Vice-President then administered to Mr. Carlile and Mr. Willey the oath prescribed by law, and they took their seats in the Senate. [Extract from remarks of Mr. Bayard, of Delaware, in support of the motion made by him that the credentials be referred to a committee; taken from page 103 of the Congressional Globe referred to in the head-note. 1 "Before the Senate proceeds to swear in these gentlemen, I beg leave to enter my protest. I think these credentials ought to be referred to the Committee on the Judici- ary. They involve very grave questions. You are undertaking to recognize a govern- ment of the State of Virginia which is not the regular State government, even though that State government may be in what yon may call a state of rebellion. You are bound to take notice of the fact that Mr. Letcher is governor of, Virginia, and that his term of office, under the constitution and laws of Virginia, has not yet expired. If yon say he is in rebellion, that does not authorize a portion of the people of Virginia to form a legis- lature for the purpose of electing Senators to take seats in this body. You have no authority to create a new State out of a part of an existing State. I tliink the qnestions are very grave. ' ' Of course, I know very well that you have the commanding majority in this House; WILLEY AND CAELlLE. 203_ but I think you had better pause and have an investigation before you undertake to swear in members under such an authority. I make the motion, before swearing in either of these gentlemen, that the credentials be referred to the Committee on the Ju- diciary. I have no personal feeling of any kind about this matter, but it seems to me to be a grave violation of the Constitution of the United States, and I must enter my protest against it. I make the motion that the credentials be referred to the Committee on the Judiciary." [Extract from remarks of Mr. SiuUbury, of Delaware, in support of the motion offered by jTr. Bayard that the credentials be referred to a committee ; taken from oage 103 of the Congressional Globe referred to in the head-note.] "It is a matter of indifference to me, sir, what disposition is made of the credentials of the proposed Senators from Virginia; but I wish to call the attention of the Senate to one fact, which, in my mind, shows the propriety of the motion now made./ These cre- dentials, as read by the Secretary, state that on the 9th day of July the legislature of the State of Virginiar, owing to the abdication of Mr. Mason and Mr. Hunter, elected these gentlemen to seats u^on this floor. No 'longer ago, however, sir, than yesterday, this body treated Mr. Mason and Mr. Hunter as members of the Senate of the United States. Yesterday you expelled those gentlemen from seats upou the floor of this Sen- ate as members of the Senate. Then, at the time of this election by the new govern- ment of Virginia, there was no vacancy in the Senate of the United States from that State, according to the judgment of the American Senate. Yesterday morning, when you met, according to the j udgment of a majority of the members here Mr. Mason and Mr. Hunter were members of this body. • You treated them as members of this body; you exercised your power of expulsion upon them. Could you have expelled them, as members of the Senate, from seats on this floor, if they were not at the time of the vote, in your judgment, actually members of this body? If they were yesterday morning members of the Senate of the United States — and you have treated them as such, and expelled them — can you now allow these gentlemen to be sworn in as Senators from the State of Virginia when the credentials presented here show on their face that they were elected not to fill any vacancy; when the facts, as you have decided them, show that there was no vacancy in the Senate? For that reason, and for none other, I think the credentials should go to the Committee on the Judiciary." [Extract from remarksof Mr. Trumbull, of Illinois, in opposition to the motion made by Mr. Bayard that the credentials be referred to a committee ; taken from page 104 of the Congressional Globe referred to in the head-note.] ' ' Mr. President, I think that we should not ' ' stick in the baric " as to dates here. I pre- sume the Senator from Delaware was elected before the vacancy which he filled existed. There is scarcely a Senator here that was not elected in advance, before the office became vacant. I recollect well that the Senators from Minnesota were admitted to seats upon this floor who were elected long .before the State of Minnesota was a member of the Union. Nearly every new State which has come Into the tjnion has elected her Senators before the State was admitted. Now, let me put a case. A few years ago this country was engaged in a war with Mexico. Suppose that one of the Senators from Delaware, instead of being loyal and true to his country, had turned traitor and joined the Mexican army and fought against the United States, and the legislature of Delaware had been in session, knowing the fact that one of their Senators in this body was fighting against this country in the armies of its enemies: must the legislature of Delaware wait till the Congress of the United States assembles, and the Senate, by a formal resolution, expels that Sena,tor? Would not the legislature of Delaware proceed at once to elect a Senator, and when Congress did con- vene, and a resolution was offered to expel the traitor to his country, would it be said, because the State of Delaware acted before Congress had convened and expelled the traitor, that therefore the other election should go for nothing, and that her legislature must be convened and a new election held ? "Sir, the guilt and the turpitude of the men who once sat as Senators here is far greater than it would have been in the case I have supposed. They have joined in a fratricidal war against their country. They have not joined a foreign enemy, but they have uncertaken to stir up a domestic war. I do not think there is any necessity for their waiting till the formal resolution of expulsion was passed here. Why, .sir, these credentials recite the fact that the former Senators have withdrawn and abdicated; and when the expulsion takes place, it may well have reference to the time of their with- drawal and abdication. "Now, sir, we have the credentials here fair on their face. They purport to be the credentials of Senators elected by the old Commonwealth of Virginia, sent by a person purporting to be the governor of Virginia, and under the great seal of the State. This 204 SENATE ELKCTIOX CA.^ES. appears to be fair. Bui Senators say, "Oh, well; but we know this is not the legis- Sature ofVirginia; there is another legislature, and there is another man who is gov- ernor." Well, if you are going outside of these credentials to rely on the knowledge which you have of the condition of things in the State of Virginia, then you know that the old governor of Virginia and the old legislature are in rebellion against the country. They are rebels and traitors in arms against the Grovernment, and are not to be recog- nized as the government of Virginia, but are to be recognized as enemies and traitors, whom the whole power of this Government is now put forth to subdue and bring into ■oToedience to the Constitution and the laws; and I would to God that the power was used to bring them to obedience. " Now, sir, as I said, I am not for "sticking in the bark" about this matter. Let us take the condition of things as it is. Here is the State of Virginia in rebellion. If you are going outside to inquire after the fact, you will ascertain that a portion of the people of that State have risen in arms against the Government; another portion of the people of that State are loyal to the Union; and the loyal men of Virginia have elected a legis- lature and seek representation in the Congress of the United States. They are entitled to representation here, and the enemies of the country are not. "I thinis there is no necessity for referring thisjnatter to the committee. Unless there are some facts to be inquired into. On its face this purports to be an election of Sena- tors from the Commonwealth of Virginia. There is no objection to the form of it, and I do not know that any fact has been suggested by the Senator from Delaware that is to be .inquired into. What fact does he propose to inquire into ? If he goes to his general knowledge, is he not satisfied that what was the old legislature of Virginia and its former governor are noW in rebellion against the Government? And will he recognize them as having any authority to send Senators here? I presume not. And if Virginia is in the Union, her loyal me"ta and not her traitors have a right to be represented here. I trrlst, sir, that the Senators will be sworn in." STANTON VS. LANE. 205 [Thirty-seventh Congress — First and second sessions.] , FEEDEEIO P. STANTON vs. JAMES H. LANE, of Kansas. The oredentlals of Mr. Lane, one of two first Senators elected by the legislature of Kansas in April, 1861, were presented July i, 1861, and he took his seat. July 12, 1861, a paper purporting to be the credentials of Mr. Stanton, appointed a Senator by the governor to the seat .held by Mr. Lane, ■was presented, and referred to the Couimittee on the Judiciary. August 2, 1861. the committtee re- ported that Mr. 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 oi)inion of the committee the office of brigadier-general un- der the United States is incompatible with that of member of either House of Congress. ' By ac- cepting 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. Stairton, 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 commis- sion Mr. Stanton now claims hig seat. Your committee recommend the adoption of the following resolutionsr*'!. Resolved, That J araesH. Lane is not entitled to a seat in this body, 2. Hesolved, That Frederic P. Stanton is entitled to a seat in this body." No action was taken on the report or resolutions during this session of Congress. December 18, 1861, in the next session of Congress, the report was recommitted to the committee. The committee reported the same without amendment January 6, 1862. January IG, 1862, the first resolution wa,s amended bystriking out the word " not," and it was " Besolved, That James H. Lane is entitled to a seat in this body ; " and the second reso- lution was indefinitely postponed. Of those voting in favor of Mr. Lane's title to the seat some proceeded upon the ground that on the 20th of June, 1861, the office of brigadier-general did not exist, and consequently that Mr. Lane was not a ''person holding any office; " others upon the ground that although he held an office after he had been elected Senator, yet, having resigned the same before taking his seat in the Senate, he did not come witliin the provision of section 6 of the first article of the Constitution. The history of the case here given consists of a transcript of the proceedings of the Senate relat- ing to it from Senate Journals, 1st and 2d sess. 37th Cong., with the "report of the committee from SenateBeports,lst8esB. 37th Cong., No. 1. . The documents relating to the case are Ex. Doc. No. 8 and Mis. Doc. No. 11, from Senate Execu- tive and Miscellaneous Documents, )st sess. 37th Cong. Special references to the debates of each day are inserted below. Thursday, July 4, 1861. Mr. Grimes presented the credentials of the Hon. James Henry Lane, elected a Sen- ator by the legislature of the State of Kansas. The credentials were read, and the oath prescribed by law was administered to Mr. Lane. Feiday, July 12, 1861. Mr. Foot presented a paper purporting to be the credentials of the Hon. Frederic F. Stanton, appointed a Senator by the governor of the State of Kansas; which was re- ferred to the Committee on the Judiciary. Mr. Foot presented a memorial of Frederic P. Stanton, asking admission as a mem- ber of the Senate of the United States; which was referred to the Committee on the Judiciary. [A brief statement by Mr. Lane is found on page 82 of the Congressional Globe, 1st sess. 37th Cong.] Tuesday, July 16, 1861. Mr. Lane, of Kansas, presented a letter from the chief clefk of the War Department inclosing a copy of the appointment of F. F. Stanton as special agent to Kansas and New Mexico; which was referred to the Committee on the Judiciary. WEDJfESDAY, July 31, 1861. Mr. Lane, of Indiana, submitted the following resolution; which was considered by unanimous consent, and agreed to: ^'Resolved, That the President of the United States be requested to inform the Sen- ate whether the Hon. James H. Lane, a member of this body from Kansas, has been appointed a brigadier-general in the Army of the United States; and, if so, whether he has accepted such appointment." Feiday, Aud with power to send for persons and papers," BENJAMIN STABK. 225 The Senate proceeded, by unanimous consent, to. consider the said resolution; and After debate, On motion by Mr. McDougall that ths resolution lie on the table, it was determined in the negati-ve — ^yeas 7, nays 32. On motion by Mr. King, the yeas and nays being desired by one-fifth of the Senators present. Those who voted in the affirmative are Messrs. Carlile, Hale, McDougall, Nesmith, Pearce, Powell, and Saulsbury. Those who voted in the negative are Messrs. Anthony, Browning, Chandler, Clark, Co] lamer. Cowan, Dixon, Doolittle, Fessenden, Foot, Poster, Grimes, Harlan, Harris, Henderson, Howard, Howe, Johnson, King, Lane of Indiana, Latham, Morrill, Pom- eroy. Rice, Sherman, Sumner, Ten Eyok, Trumbull, Wade, Wilkinson, WiUey, and Wilson of Massachusetts. Pending further debate upon the resolution, The Vice-President announced that the hour of 1 o'clock' had arrived, and that it was the duty of the Chair to call up the special order of the day for that hour, whichwas the bill (S. ,151) to confiscate the property and free the slaves of rebels, being the unfinished business of the Senate at its last adjournment; and the Senate resumed the consideration of the said bill. [The debate is found on pages 1011-1014 of the Congressional Globe, part 2, 2d seas. 37th Cong.] Tuesday, March 18, 1862. On motion by Mr. Howe, the Senate resumed the consideration of the resolution sub- mitted by Mr. Stark the 28th of February, in relation to an investigation into certain charges of disloyalty preferred against him; and After debate, On motion by Mr. Wilkinson that the resolution lie on the table, it was determined in the negative — yeas 3, nays 35. On motion by Mr. Howe, the yeas and nays being desired by one-fifth of the Senators present. Those who voted in the affirmative are Messrs. Hale, Saulsbury, and Wilkinson. . Those who voted in the negative are Messrs. Anthony, Bayard, Browning, Clark, Col- lamer, Cowan, Davis, Dixon, Doolittle, Fessenden, Foot, Foster, Harlan, Harris, Hen- derson, Howard, Howe, Kennedy, King, Lane of Indiana, Lane of Kansas, Latham, Morrill, Nesmith, Pomeroy, Powell, Sherman, Simmons, Sumner, Ten Eyck, Thomson, Trumbull, Wade, Wilmot, and Wilson of Massachusetts. After further debate. On motion by Mr. Trumbull to amend the resolution by striking out the words "the Committee on the Judiciary" and inserting " a select committee to consist of five mem- bers," it was determined in the affirmative. On the question to agree to the resolution, as amended, as follows: "■' Resolved, That the papers relating to the loyalty of Benjamin Stark, a Senator from Oregon, be withdrawn from the files of the Senate and referred to a select committee to consist of five members, with instructions to investigate the charges preferred against saidBtark on all evidence which has been or may be presented, and with power to send for persons and papers, " It was determined in the affirmative — yeas 37, nays 3. On motion by Mr. Hale, the yeas and nays being desired by one-fifth of the Senators present, Those who voted in the affirmative are Messrs. Anthony, Browning, Clark, Collamer, Cowan, Davis, Dixon, Doolittle, Fessenden, Foot, Foster, Harlan; Harris, Henderson, Howard, Howe, Kennedy, King, Lane of Indiana, Lane of Kansas, Latham, Morrill, Nesmith, Pomeroy, Powell, Eice, Sherman, Simmons, Sumner, Ten Eyck, Thomson, Trumbull, Wade, Wilkinson, Wilmot, Wilson of Massachusetts, and Wright. Those vyho voted in the negative are Messrs. Bayard, Hale, and Saulsbury. So the resolution as amended was agreed to. On motion by Mr. Collamer, Ordered, That the select committee authorized by the said resolution be appointed by the Vice-President. The Vice-President appointed Mr. Clark, Mr. Howard, Mr. Wright, Mr. WiUey, and Mr. Howe. [The debate is found on pages 1261-1266 of the Congressional Globe, part 2, 2d sess. 37th Cong.] Tuesday, April 2, 1862. " Mr. Clark, from the select committee appointed to investigate the truth of certain charges against the Hon. Benjamin Stark, a Senator from the State of Oregon, submitted a report (No. 38), which was ordered to be printed. S E C 15. 226 SENATE ELECTION CASES. EBPOKT OF SELECT COMMITTEE. [The committee consisted of Messrs. Clark, Howard, Wright, WiUey, and Sherman.*] In the Sejstate ov the United States. Apeil 22, 1862.— Ordered to be printed. Mr. Clark submitted the following report: The select committee to whom were referred "the papers relating to the loyalty of Benjamin Stark, a Senator from Oregon," report: By the resolution under which the committee were appointed they were instructed "to investigate the charges preferred against said Stark on aU the evidence which has been or may be presented, and with power to send for persons and papers. " The first question which presented itself for the consideration of the committee was, whether they would proceed to take further testimony than that already taken and referred to them by the resolution. In determining this question the committee were influenced by the facts that the Senator whose loyalty is questioned comes from the distant State of Oregon; that the witnesses who could be supposed to know most in regard to his loyalty resided in that State, and that their testimony could not be had until the next session of Congress; that the Senator was appointed by the governor of Oregon to fill the vacancy occasioned by the death of the lamented Baker, and that his' term would expire upon the meeting of the legislature of Oregon in September next, and before the testimony could be received and used. The committee therefore came to the conclusion that it was not practicable to take further testimony, unless the Senator from Oregon, Mr. Stark, might desire to take tes- timony to rebut that already before the committee. To ascertain Mr. Stark's desire on this point, they caused to be addressed to him a letter, of which the following is a copy: United States Senate, Committee JBoom on Claims, March 20, 1862. Sie: At a meeting of the select committee authorized by the resolution of the Senate of the 18th' instant " to investigate the charges preferred against Mr. Stark, on all evi- dence which has been or may be presented, with power to send for persons and papers," the following resolution was adopted: On motion by Mr. 'Howard, ' ' Resolved, That the Hon. Mr. Stark be notified of the next meeting of the committee, and be invited to attend and submit to the committee any suggestions or matters he may be pleased to present in relation to the subject ■with which the committee is charged." In conformity vfith the foregoing resolution you are respectfully notified that the next meeting of the committee vsoll be held at the room of the Senate Committee on Claims on Monday next, the 24th instant, at 11 o'clock a. m., which you axe invited to attend. By order of the committee. N. C. TOWLE, Cterk Select, Oommiitiee, <&c. Hon. Benjamin Staek, Senator from Oregon. The committee met on the 24th of March, and the Senator from Oregon attended the meeting in compliance with the in'vitation of the commijtee, and desired that the com- ' mittee should examine the papers before them, and if they should come to the conclusion that grounds were furnished for the fchaige of disloyalty by the papers and testimony, that the committee should draw up specific charges, to which he would file his answer. This the committee declined to do, for the reason that they did not wish to become his prosecutors, and were charged by the Senate with investigation and not accusation. Mr. Stark was informed that the committee did not propose to take any further testi- mony unless he desired it, but would investigate the charges as presented by the papers then before them. To which the committee understood Mr. Stark to reply that he did not wisli to take any further testimony as the matter stood. It wa§ then suggested by the committee to the Senator from Oregon that he should sumbit to the committee his answer in writing to the allegations and evidence then before the committee, with anj' further evidence he might wish to present, and -that the committee would adjourn to afibrd him the necessary time for that purpose. ■With this proposal the Senator expressed his compliance and satisfaction, and the committee a(^journed 'to meet again at his convenience. * Mr. Sherman was appointed in place of Mr. Howe, excused BENJAMIN STAEK. 227 At a subsequent meeting of the committee on the 14th April the following statement was presented from Mr. Stark and considered: -Washington, D. C.,Apnl 10, 1862. Sir: I have the honor to acknowledge the reception of a note from your committee, inviting me to make any suggestions I may think proper upon the statements and ex ■ parte affidavits in relation to my loyalty, which were referred to the committee under the resolution adoptfed by the Senate on the ultimo. Deeply sensible of the courtesy of the committee thus extended to me, I regret that unavoidable absence from the city and the pressure of other engagements have prevented me from making an earlier response. I presume that in extending to me this invitation before entering upon the investiga- tion necessary to a discharge of the delicate duty devolved upon them by the Senate the committee designed simply to aiford me an opportunity, if I should deem it proper to do so, to present my personal views of the matter now pending before them. Under the resolution of reference, the committee are clothed with the fullest powers for the purpose of confirming or dissipating any doubts which may have been engen- dered by these statements and affidavits as to my Iqyalty. In offering that resolution I, have shown, I think conclusively, that there was no disposition on my part to shun the most searching investigation. If the committee propose to confine theia- investigation exclusively to those statements and ex parte afiBdavits now before them, in connection with what I may submit for their consideration, it may not be inappropriate for me to express my opinions in regard to them, and I shall do so in the same spirit by which the committee appear to have been actuated in making the request. As it could not be fairly supposed that I would permit myself to occupy the attitude of self-prosecutor, or that I would assume the task of defending myself when no charge on prima /aeie evidence had been preferred against me, I trust that I may do so without derogating from the true position which my honor and self-respect demand that I should occupy. With all due deference, therefore, I submit that as a Senator of the United States for the State of Oregon I am entitled to, and I claim, every presumption of honor, integrity, loyalty, and patriotism that can be claimed by any other Senator until such presump- tion is overborne by competent testimony. It certainly would be very extraordinary to put an honorable Senator upon trial for expulsion without charges and specifications made with reasonable (if not technical) precision, and supported by testimony subjected to all the tests which human wisdom and human experience have found to be ^sential for the ascertainment of truth. Should such a case ever arise it is reasonable to suppose that it would not be permitted long to interrupt the orderor disturb the decorum of the Amer- ican Senate. Unless the proceedings of your committee are to be regarded as a prelim- inary inquiry whether or not charges for expulsion ought to be pre*jrred against me, in what essential particular does this case differ from the one suggested ? The papers referred to you I have again examined with that earnest attention which a deep personal interest in the result of an inquiry must ever stimulate, and with the light reflected upon them by the communication which I had the honor to address to the Com- mittee on the Judiciary, under date of January 17th ultimo, I am unable to discover any- thing upon which a sufSoient charge for expulsion can be predicated, or anything in the nature of evidence which an impartial tribunal could receive as sufficient to justify expul - sion from the Senate. Accepting all the statements contained in the letters, affidavits, &a, to be true, and there is merely attributed to me opinions which in the field of poli- tics might be regarded as heresies, and expressions charged upon me which might be characterized as idle, mischievous, and-unwise. This suggestion, I need not remind the committee, is not made as palliative tipon an admission by me of the truth of any part of these, statements, but purely as argumentative and as properly within the scope of my purpose in addressing to them this communication. Guided by this purpose I have in these reflections excluded any denial or admission of anything contained in the papers before the committee, my chief design being accomplished if I shall have succeeded in showing the utter impossibility of making, or even entering upon, a defense of any spe- cific charge or of proffering to rebut evidence when none is presented. I cannot conclude this brief statement without asserting, as in substance I did in my communication to the Judiciary Committee, that the declarations of my assailants are utterly false in many particulars which might be deemed important, especially the state- ments of Hull and Law; that the expressions attributed to me in others of the affidavits have been wickedly and maliciously perverted, and that in every respect their declara- tions are unjust to my real sentiments and at variance with the whole tenor of my life. Should the committee, however, deem that the public safety and welfare require a formal inquest upon my loyalty and fidelity to the Constitution and Government of my Covuitry, I submit with profound respect that justice demands that the general iillega- 228 SENATE ELECTION CASES. tions of my assailants shauld be digested and presented in the form of charges and speci- fiations so that; I may have the ordinary and common rights accorded to the humblest citizen when arraigned for trial for the most trivial offense. I remain, sir, your obedient servant, BENJAMIN STARK. Hon. D. Claek, Climrman. After considering this statement, desirous to know if the Senator had any further communication for the committee or wished to lay before them any further testimony, the committee caused a note to be addressed to him, of which the following is a copy: United States Senate, Committee Boom on Claims, April 14, 1862. Sik: At_a meeting of the select committee, of which Hon. Mr. Clark is chairman, held at their room this day, your communication of the 10th instant addressed to the com- mittee through its chairman was read and considered, after which it was ordered that a communication be addressed to Mr. Stark requesting him to inform the committee at ■ his earliest convenience whether he desires to submit any further testimony or to make "any further statement to the committee in regard to the matters under investigation. The committee adjourned to Wednesday nextat 11 a. m., by which time, if convenient to Mr. Stark, an answer is desired. By direction of the committee. N. C. TOWLE, Clerk. Hon. Benjamin Stake, Senator from Oregon. The committee met again on the 16th of April, when the following note was. received from the Senator from Oregon: Senate Chambee, AprillS, 1862. Sik: In answer to the note of your committee, dated yesterday, I have to state that in the absence of information from them as to the course which they deem it to be their duty to pursue I have nothing to add to what I have already communicated to them, nor do I propose in the present situation of the subject before them to present any testi- mony. With great respect, I am your obedient servant, BENJAMIN STARK. The committee then proceeded to considef the allegations and charges contained in the. papers which had been submitted to them by the Senate, in connection with his answer and statement, and upon mature deliberation do find the following conclusions from the facts proved, viz: 1st. That for many months prior to the 21stNovember,1861, and up to that time, the said Stark was an ardent advocate of the cause of the rebellious States. 2d. That after the formation of the constitution of the Confederate States he openly declared his admiration for it,' and advocated the absorption of the loyal States of the Union into the Southern Confederacy under that constitution as the only means of peace, warmly avowing his sympathies with the South. 3d. That the Senatbr from Oregon is disloyal to the Govemment of the United States. ' In coming to the foregoing conclusion, the committee cheerfully agree to the statement of the Senator in his answer, that, " as a Senator of the United States for the State of Oregon, I am entitled to, and I claim, every presumption of honor, integrity, loyalty, and patriotism that can be claimed by any other Senator, until such presumption is overborne by competent testimony;" and they cheerfully accord to him all the force and benefit of such a presumption; at the same time they are forced, with pain and reluctance, to find such presumption overborne by the array of witnesses which testify in regard to his conduct and declarations. Thirteen witnesses, who are not only unim- peachable, but are among the most respectable people of the city of Portland, where Mr. Stark resides, testify to the truth of the first of the foregoing propositions. They are William H. Rector, William C. Johnson, C. B. Conelon, A. B. Clough, Levi Ander- son, Colburu Barren, Henry Failing, John S. White, W. H. Bamhart, S. P. Reed, H. W. Corbet, Simeon Francis, and Samuel E. Earr. They say "Mr. Stark, who is a resi- dent here, and personally known to us all, hoK beeti, for tJie past twelve months, an ardent advocate of tlie cause of the rebelliovs Stales." It may be objected that these witnesses do not m^ke this statement under oath, and such is. the fact; but they nevertheless, in the opinion of the. committee, are entitled to belief. Their character for respectability. BENJAMIN STARK. 229 aud the positions of some of them, entitle them to it. They gave their testimony months ago, on the 21st November, 1861. It seems to be fair and unprejudiced. They declare that a sense of duty induces them to make their statement. It has been a long time before the Senate; and, although in his communication to the Committee on the Judiciary, dated the 17th January, 1862, the Senator from Oregon declared "that in a forum, competent to try and determine the issue, he. should be able to prove the aUegar- tions against his loj'alty to be utterly unfounded; and that, in-many important par- ticulars, the declarations of his assailants were false," yet when an opportunity has been given to the Senator, upon his own motion, to send for persons and papers to disprove these allegations before a committee legally, if not otherwise, competent, the Senator does not desire these witnesses to be put under oath, nor to be re-examined, nor cross-examined ; nor does he offer any rebutting testimony, or expresss a wish that any should be taken; nor dogs he, in his statement, filed before the committee, so far as the committee remember, attempt to deny or impeach it — for while he says that the - statements of Hull and Law are especially false, he makes no such ^allegation against these thirteen witnesses, or any one of them. He objects to no one of these witnesses because his statement was not made under oath. These witnesses, however, do not stand alone, nor does -the finding of the committee on this proposition rest solely upon testimony given without the sanctity of an oath. Wesley C. Hull, upon oath, on the 18th November, 1861, says that, in the moiith of February previous, he heard Mr. Stark make use of the following language: "If there is to be any war between the North and the South, all my property is for sale at fifty cents on the dollar, -and I will go and help the South fight. The Palmetto flag is my flag; the Southern Confederacy is the only legal government in existence; that the United States Government is broken up; that Jeff. Davis is fighting in a good cause, and it will be im- possible to defeat him;" that afterwards upon another occasion he heard the said Stark use the following-language: "The United States forces may fight the South from one end of their government to the other, but it will amount to nothing; they will close ap behind them, aud they cannot be conquered. The South is fighting in a good cause, f jr government and order, and they cannot be conquered.^' ^ Henry Law, also on oath, says that he is acquainted with Mr. Stark; that as early as December, 1860, Tie heard Mr. Stark say "that he did not go one cent on the Stars and Stripes ; that the Palmetto flag was his flag, and if there was any issue between the North and South, he would sell all hispi;operty and go South. ' ' A. M. Starr, also under oath, on the 20th November, 1861, declared that within the then last two weeks past he had heard Mr. Stark say that there was no United States Government; and also he heard Mr. Stark say, when the President first called for vol- unteers, "that the United States Government could not support an army of 30, 000 in the field/or six months; that the people of the loyal States would not bach up the Administra- tion in trying to put down this rebellion." Thirty other witnesses, likewise under oath, say, on the 15th November; 1861, "that Mr. Stark is well known and generally reputed to be an open and avowed friend to the Southern Confederacy as against the Union. ' ' ' Samuel E. Barr, the magistrate before whom the last-named thirty witnesses made oath, says he is acquainted with each and every one of them, and that they are all men of truth and veracity, and further, that he subscribes to the facts which they stated. Here are forty-six witnesses, all testifying, materially and directly, to the same sub- stantive fact, to wit, that Mr. Stark has been the advocate of the Southern Confederacy; uncontradicted and unimpeached, except so far as the statement of Mr. Stark may go to Ihat purpose; and the committee are unable to see how a larger number of witnesses could establish the truth of the proposition more firmly. They do not forget, however, that Mr. Stark says that the testimony of two of those witnesses, especially Hull and Law, is false, and he is entitled to any deduction that maybe made from their credibil- ity on that account, and to the tact that one of them is evidently mistaken in fixing the time of a particular conversation. They stand, however, with the other witnesses testi- fying to similar facts, and are uncontradicted by any oiher person; and the committee can come to no other conclusion than that the facts "«hus stated by these witnesses are substantially and lully proved, even if the testimony of these two witnesses should be excluded. The second finding of the committee is proved partly by the declaration of most of these same witnesses, and partly by the distinct and unqualified declaration of the Sen- ator himself to the committee. The same thirteen witnesses above named, in their let- ter of the 21st November, 1861, say: "He (the Senator from Oregon) has openly avowed his sympathies for the South, declaring the Government disrupted, and openly express- ing his admiration lor the constitution of the Confederate States, and advocating the absorption of the loyal States of the Union into the Southern Confederacy under that constitution as the only means of restoring peace. ' ' This, these witnesses say, he has done openly. The witnesses live in the same city 230 -SENATE ELEGTIOTSr CASES. ■with him, and there can be no question that they had the means of knowing the con- duct, opinions, and declarations of Mr. Stark on these matters. Mr. Hull testilies, on the 18th November, 1861, that some time after the month of February, 1861, !he precise time he does not rnention, he heard Mr. Stark say: "The United States forces may fight the South from one end of their government to the other, but it will amount to nothing; they will close up behind them, and they cannot be conquered. The South is fighting in a good cause, for government and order, and they cannot be conquered." Henry Law, on the 20th Novemberi, 1861, says he has heard the said Stark say that Ik was a secessionist, and all his sympathies were for tlie South. John M. Breck, on the 2ist of November, 1861, deposes that he and Mr. Stark live in the same place, and that he is personally acquainted with him; that just after the news of the reverses of the national armies at Bull Eun, the affiant being at the time stand- ing at the entrance of the Bank Exchange in the city, of Portland, did then and there distinctly hear and see the said Benjamin Stark drink a toast in company with a well- known secessionist, to the following effect, viz: "Beauregard," or "Beau-Eegard;" that he cannot certainly say that the said Stai;k alluded to the notorious rebel of^that name, but such was his understanding, never having previously heard said Stark use the latter phrase. It is due to the Senator from Oregon to state that on referring to this testimony before the committee he declared that it was not true. He did not, however, say that the witness was not a truthful man, and worthy of belief under oath, butthat he was mis- taken, or misunderstood what was said. That he might have drank tlie toast with some one, and have said, "My regards to you, sir," and that expression been taken for what the witness testifies. But the committpe deem it proper to remark, in justice to the witness and to truth, that the witness says "he did then and there distinctly liear and tee the said Stark, in company with a well-known secessionist, drink the toast," &o. And here is presented a touchstone for ascertaining the truth of the witness's statement. The witness says he drank this toast with a well-known secessionist — and with such a person, the committee submit, he would be likely to drink it if he drank it at all — and Ihis person would know" whether or not Mr. Breck is correct in his statement. Mr. Stark had it in his power, and at his option, without expense to him, to have summoned Breck before the committee, and inquired of him who the person was with whom he, Mr. Stark, drank the toast. He then could have summoned that person before the committee and ascertained the truth or falsity of Mr. Breck's statement. Yet this he entirely failed or neglected to do, not because he was unaware of the importance of the testimony, for his attention was attracted to it, and he had taken pains himself to deny it. This testimony, therefore, is entitled to credibility, for the Senator had the means placed at his power of overthrowing it if incorrect, and failed to do so. If, then, this statement of Mr. Breck's be true, how completely and to what extent does it show the sympathies of the Senator were with the rebels ! How full of disloyalty must have been the heart of the Senator to the Union cause, thus, in company with a well-known secessionist, exultantly to drink a toast to the man who had planted the batteries against and breached the fortifications of his own Goveriiment — ^and such a Government ! and who led a host which slaughtered his fellow-citizens, mutilated their dead bodies, and struck with traitorous swords at the heart of the country? Thirty-one other witnesses, whose names the committee have, say that Mr. Stark is well known and reputed to be an open and avowed friend of the Southern Confederacy as against the Union. Peter Smith, on the 21st of November, 1861, deposes that Mr. Stark maintained be- fore him that any State had a right to secede from the re.st of the Union, * * * and there was no constitutional right to coerce them into submission. On the 29th of January, 1862, Joseph Lane appeared before the Judiciary Committee of the Senate and testified that in a conversation with Bishop Scott he heard Mr. Stark say that his sympathies were with the South, atid that they were right, He does not undertake to give the precise words of the conversation, which occurred in June, 1861. This witness Mr. Stark had the opportunity of cross-examining, and here again he had the opportunity, if Mr. Lane had been mistaken, to have corrected him. He might have called Bishop Scott before the committee and inquired if he had any such conversation with Mr. Stark or heard him make any such declarations, but he neglected entirely the opportunity of ascertaining the truth or of contradicting the testimony against him. The committee, however, did not rely entu'ely upon the testimony of witnesses for ' this finding. .Mr. Stark in the presence of the committee, at one of their meetings, distinctly admitted and said that nmo he would be willing that the loyal States should be absorbed under the confederated constitution for the sake of peace. The committee were equally pained and surprised at such an expression, but could not fail to perceive how pungent a force it gave to much of the testimony against him; nor could they fail to come to the conclusion, however disagreeable. Thirdly. That the Senator from Oregon is disloyal to the Government of the United States. If the first two findings of the committee be correct and the testimony of the 'wit- nesses be received andcredifed, this third finding results almost as a matter of necessity. The Southern Confederacy is the work of rebellion; those who formed it are in arms against the Grovemment of the United States. Its constitution is the product of trea- son. It is antagonistic, inconsistent, and hostile to the Government of the Union. If rebellion be successful and the Southern Confederacy be established, the Government of the United States must be overthrown and destroyed in nearly one-half its legitimate jurisdiction. Those, therefore,, who advocate and support the course of the Southern Confederacy must be deemed opposed to the Government of the United States and dis- loyal thereto. The truly loyal citizen cannot desire and will not permit a rebellion in any of the States to succeed. Success to the one is the disruption, overthrow, and de- feat of the other; especially when the two sections are in arms will the true citizen give all his sympathies, his efforts, and his prayers to the maintenance of a Government which has diffused its blessings so bounteously and so widely as our own. There may be some excuse or palliation for those who, living in rebellious States, are swept away or absorbed by the terrible events there occurring; but there certainly can be none for one who, like the Senator from Oregon, remote from the scene of strife, voluntaxily, among a people disposed to be loyal, thus sympathizes with and advocates the cause of rebellion. By disloyalty the committee mean the want of fidelity to his allegiance to the conn- try, and a disregard of the duty he owes her in this' her hour of need and peril. Now, if it be loyal to advocate the cause of the seceded States, then the Senator from Oregon may be loyal. If it be loyal to sympathize with the rebels, to declare that they are right, and cannot be coerced; to desire for them peace, that they may perfect and carry out their schemes, then may the Senator from Oregon be loyal. If it be loyal not only to express an admiration for the constitution which the rebels have adopted to combine their strength, and make it effectual for the permanent disruption of the American Union and the permanent establishment of their own confederacy, but also to desire the^ absorption of the other States under it, thus, so to speak, nationalizing treason and making the Government succumb to treason, rather than treason to the Government, then may the Senator from Oregon be loyal. If it be loyal, when the ' President called for volunteers to save the capital from seizure and suppress rebellion, discouragingly to 'assert that the United States could not support an army of thirty thousand men, nor would the people sustain the Administration in trying to put down the rebellion; if it be loyal, when the fortifications of the country are battered down by the cannon of domestic foes, and our soldiers are defeated, put to rout and slain, and their dead bodies mutilated and buried, "to drink the health" of the traitor who led the host that perpetrated these enormities, then may the Senator from Oregon be loyal. But if, as the committee think, such conduct and declarations, at the time when the Government was accepting war as a dire necessity, and struggling for its very existence, could only proceed from a heart sadly and wickedly inclined to sympathize with trea- son, and show itself false to every duty and deaf to every call of patriotism, then is the finding of the committee fully warranted by the evidence. "No man can serve two masters." Sympathy with rebellion must shut out patriot- ism from the heart. It can only exist where the other is not. No man can be true to his country who would do or say aught to aid a conspiracy so wicked, so malignant, so remorseless, and so traitorous as the present rebellion. The Senator from Oregon cannot be ignorant of the aim and design of the seceding States. They confederated together to break up the Federal Government. They openly proclaimed their determination; and if the Senator aided them by word or deed, he did it with a full knowledge that it was a blow at his country's existence. The committee do not forget that it is asserted by the Senator that many of the papers referred to the committee are from his bitterest political enemies; and did the findings of the committee rest upon such papers alone, much consideration should be given this statement. But, turning from these papers of his political enemies to the Senator's own letter to the Democratic mass convention held in Linn County, Oregon, June 5, 1861, the com- mittee find sad evidence of the same spirit animating the contents and dictating the expressions. "Civil war cannot avert disunion;" '"Subjugation cannot prolong the Union;" "To subjugate the South, were that even possible, would be the establishment of a military despotism, " are expressions found in this letter, and so marvelously like many of those attributed by the witnesses to the Senator that there is no difficulty in believing that they all belong to the same family and have a common parent. And they all are calculated io encourage the rebellion, and discourage the efforts to suppress it. Who- ever may read this letter, mutilated as it is, keeping in mind that it was written about 232 SENATE ELECTION CASES. the time he is said to have uttered lihe expressions attributed to him by the witnesses, will the more readily believe that the statement of the witnesses closely accords with the evidence furnished by the Senator himself. Indeed, this letter of June, 1861, and the statement of the Senator to the committee have added much to the weight of the other proof. The first tallies in sentiment and spirit with the witnesses; the other, though made when the Senator was under an accu- sation of disloyalty in papers referred to the committee upon his own motion, and though the committee by inviting that statement intended to give the Senator an opportunity to express his sympathy with his suffering country and menaced Goyerii- ment, and to remove so far as he could in that way any impeachment of his loyalty, is as barren of all such expressions as a bill of indictment. There is not in it a paragraph, nor a sentence, nor a line such as must spontaneously have burst out from a loyal heart under such an accusation. True, he speaks of being entitled to the presumptions of loy- alty, but there is no manly declaration of any determination to stand by the country iu weal or woe or to give life or fortune or any assistance whatever to her requirements. In Oregon he was frequent and open in his expressions of sympathy for the rebels. He was, say the witnesses, the advocate of their cause. But here he is as silentas the grave. Though accused of disloyalty, though the country "bleeds at every pore," though she imploringly raises her hands to him in his high place for aid and succor— he has never a word in his statement, nor an expression, sentence, or line from whiqh a drop of sym- pathy can be wrung, unless it be in his assertion that ' ' in every respect their declarations ' are unjust to my jeal sentiments and at variance with the whole tenor of my life. ' ' What those sentiments are he does not tell us, nor have the committtee any means of knowing by- any evidence before them. If he had declared them tx) the committee, asserting his loyalty to the Government, the committee would have given him the full benefit of them; and perhaps they might have gone far to have removed the unfavorable conclusions to which the committee have come. But in the absence of any such decla- rations the committee could only pass on the evidence that was before them, giving him the full benefit of every presumption that can arise in his favor, and of every de- duction that should be made for a conflict of testimony. "He that is not for us is against us" are the words of inspiration, and never more applicable than on occasions like the present. It is quite true the Senator was under no obligation to use any such expressions in his statement, but the committee cannot but believe that had the feelings existed which would have prompted them they could not have been confined in a patriotic heart — they would have found expression. Upon taking his seat in the Senate, the Senator took the oath to support the Consti- tution of the United States; and it may be objected he would not have done so if not loyal to the Government. What were the reservations, what the limitations or inter- pretations, with which the Senator took that oath the committee do not inquire; for the Senator does not assert that his feelings and views have changed since the witnesses testified. He does not pretend that he is more loyal now than when he declared his sympathies were with the South, that they were right and could not be coerced. And the committee remember and know that in their preseni^, since the taking of that oath, and since the institution of this inquiry, the Senator boldly and without condition de- clared he would be willing the loyal States should be absorbed under the constitution of the Confederacy for the sake of peace — that is, that the Constitution of our fathers, which he had just sworn to support, should be cast out of its rightful inheritance by this bastard sprout of a gigantic rebellion, which should ' ' reign in its stead. ' ' Could the traitors desire more, to wit, peace and the adoption of their government? It is the aim of their efforts; their avowed intent and purpose. No man can yield it, unless compelled by dire necessity, and not be liable to an impeachment of his loyalty. All true lovers of the country desire peace, but he who would seek it through its destruction and overthrow must be either a craven or disloyal citizen. The committee are, therefore, compelled to dismiss this consideration, and adopt the foregoing findings; adding that the appearance of the Senator before the committee, his singular declarations, statements, and conduct, have done much to strengthen the last conclusion of the committee. Itsvould have been far pleasanter to them not to have done so, and they hoped, upon entering upon this investigation, the Senator would have made such proois and state- ments as would have removed from him all suspicion of disloyalty. But he has failed to do so, and the duty was left to the committee to judge only upon what was before them. From that duty there could be no shrinking In a time like this; and the com- mittee have endeavored to discharge it thoroughly and fearlessly, and now submit their conclusions to the Senate. DAN'L CLARK. J. M. HOWARD. JOSEPH A. WRIGHT. JOHN SHERMAN. BENJAMIN STARK. 233 ' Concurring in the first two conclusions of the majarity of the committee, I am yet con- strained, not ■without hesitation, to diifer with them in their third and last conclusion. Distrusting all ex parte testimony, especially in regard to expressions uttered in the heat of high political excitement, seeing that the sentiments and opinions thus attributed to Mr. Stark are virtually denied and repudiated by him in his written statement before the committee; remembering that since it is alleged those conversations took place, and those expressions were uttered, Mr. Stark, in taking his seat as a Senator, has purged himself of these sinister allegations hy taking the oath to support the Constitution of the United States, and especially fearing the danger of .making mere difference of opinion, however wide and fundamental, a test of fidelity to the Government, I am not prepared to say that Mr. Stark is now disloyal. "W. J. WILLEY. Wednesday, May 7, 1862. Mr. Sumner submitted the following resolution for consideration: " Eesolved, That Benjamin Stark, a Senator from Oregon, who has been found by a committee of this body to be disloyal to the Government of the United States, be, and the same is hereby, expelled from the Senate." [The debate is found on page 1983 of the Congressional Globe, part 3, 2d sess. 37th Cong.] FRIDAY, June 6, 1862. On motion by Mr. Sumner that the Senate proceed to the consideration of the reso- lution submitted by him for the expulsion of the Hon. Benjamin Stark from the Senate, it was determined in the negative — yeas 16, nays 21. On motion by Mr. Saulsbury, the yeas and nays being desired by one-fifth of the Senators present, Those who voted in the affirmative are Messrs. Chandler, Clark, Foot, Grimes, Har- lan, Howe, Lane of Kansas, Morrill, Pomeroy, Sumner, Trumbull, Wade, Wilkinson, Wilmot, Wilson of Massachusetts, and Wright. Those who voted in the negative are Messrs. Anthony,. Bayard, Browning, Carlile, Cowan, Davis, Dixon, Fess^nden, Foster, Hale, Harris, Kennedy, Latham, McDougall, Nesmith, Powell, Rice, Saulsbury, Simmons, Ten Eyek, and Willey. [Thirty-seventh Congress — Second session.] LAZAEUS W. POWELL, Senator from Kentucky from March 4, 1859, till March 3, 1865. February 20, 1862, a resolution was submitted that Mr, Powell bcexpelled from the Senate. It waa accompanied by a preamble settings forth certain conduct of Mr. Powell, which, it stated, showed that "his purposeSj if not his acts, were treasonable," The resolution was referred to the Com-^ mittee on the ,Judiciary. March 12, 1862, the committee reported back the resolution with the recom- mendation that it do not pass. No report showing the grounds on which the committee proceeded was made. From remarks by the chairman of the committee, given below, it appears that nothing was shown to satisfy the committee that Mr. Powell had done anything to favor the cause of the rebellion ; that his opinions differed from the opinions of the speaker, but that no man was to be eypelled because he disagreed with others in opinion. March 14 the resolution waa not agreed to by a vote of 28 nays to 11 yeas. The history of tlie case here given consists of a transcript of the proceedings of the Senate relating to it from Senate Jom-nals, 2d sess. 37th Cong. , and remarks by Mr. Trumbull from Congressional Globe, part 2, 2d sess. 37th Cong., page 1234. Special references to the debates of each day are inserted below. TmjESDAY, February 20, 1862. Mr. Wilkinson submitted the following resolution; which was considered by unani- mous consent, referred to the Committee on the Judiciary, and ordered to be printed: "Whereas Lazarus W. Powell, a Senator from the State of Kentucky, after eleven States had published their ordinances of secession by which to sever themselves from the Government of the United States, had formed a confederation and provisional govern- ment, and made war upon the United States, did, on the 20th day of June last, at the city of Henderson, in the State of Kentucky, attend a large Southern State's rights con- vention, over which he was called to and did preside; and, on taking his seat as president thereof, made a speech, in which he stated the object of said convention, and then ap- pointed a committee, which reported to said convention a long series of resolutions that -were unanimously adopted by it. Among those resolutions are the following: " ' 2. That the war being now waged by the Federal Administration against the South- em States' is in violation of the Constitution and laws, and has already been attended with such stupendous usurpations as to amaze the world and endanger every safeguard of constitutional liberty. ****** *' " ■ That the recall of the invading armies and the recognition of the separate inde- pendence of the Confederate States is the true policy to restore peace and preserve £he relations of fraternal love and amity betvreen the States. * X- * * * » * " '6. That we heartily approve the refusal of Governor Magoffin to furnish Kentucky troops to subjugate the South; and we cordially indorse his recent proclamation defining the position of Kentucky, in accordance vrith the sentiment of her people, 2C!iA forUdding the invasion of Kentuelcy by Federal or confederate troops. " ' 7. That, although Kentucky has determined that her proper position at present is that of strict neutrality between the belligerent sections, yet, if either of them invade her soil against her will, she ought to resent and repel it by necessary foree.^ "The pith of Governor Magoffin's proclamation, -which that convention so cordially approved, is embodied in this paragraph: 'I hereby notify and -warn all other States, separate or united, especially the United and Confederate States,, that I solemnly forbid any movement upon Kentucky soil, or occupation of any part or place therein, for any purpose whatever, until authorized by invitation or permission of the legislative and executive authorities. -I especially forbid all citizens of Kentucky, -whether in the State guard or otherwise, from making any hostUe demonstration against any of the aforesaid sovereignties; to be obedient to the orders of lawful authorities; to remain quietly and peaceably 'at home when off of military duty, and refrain from all vrords and acts likely to provoke a collision, and so otherwise to conduct themselves that the deplorable ca- lamity of invasion may be averted; but, in the mean time, to make prompt and efficient preparation to assume the paramount and supreme law of self-defense, and strictly of self-defense alone.' "The closing speech of this convention -was made by Senator Powell, and the resolu- tions passed by it and a summary statement of its proceedings were signed by him as its president. ~ LAZfflSUS W. POWELL. 236 "On the lOth of September last, whilst the legislature of Kentucky was in session in the town of Frankfort, and after her territory had been invaded at two distant points by the confederate armies, and whilst Humphrey Marshall was employed in organizing and drilling an armed body of rebels in the contiguous county of Owen, a large Southern State's rights convention assembled and held its sessions in Frankfort, for the apparent purpose of overawing the legislature, controlling its deliberations, and deterring it from passing measures to support the Union and the Government of the United States, Lazarus W. Powell was a delegate to that convention from the county of Henderson, and was appointed on its committee of resolutions. Among other resolutions, that committee reported these: " 'Besolved, That every material interest of Kentucky, as well as the highest dictates of patriotism, demand that peace should be maintained within her borders, and this con- vention solemnly pledges the honor of its members to do all in their power to promote this end. " '2. That it is the deliberate sense of this convention, and it is believed of an over- whelming majority of the people of Kentucky, that the best and perhaps the only mode of effecting this great object is by adhering stricfty, rigidly, and impartially to her chosen and oft-declared position of neutrality daring the existence of the deplorable war now raging between the sections; taking sides neither with the Government nor with the seceding States, and declaring her soil must be preserved inviolate from the armed occupa- tion of either. * ' « * * « * * " '9. That we consider it incompatible with the neutrality avowed by Kentucky to vote money for the prosecution of the civil war, or to tax the people of the State, or augment its debt for a purpose so unwise and for a cause so hopeless as the military subjugation of the Confederate States.' - "This was a convention of most intense secessionists, and was attended by John C. Breckinridge and many of the leaders of that party from generally over the State. William Preston and E. W. Wooley, esquires, made speeches to it fraught with the rank- est treason, and denouncing the fiercest war against the United States. Its resolutions were unanimously adopted, and its business closed with the following one, offered by Senator Powell: ' ' ' Besolved, That Col. William Preston, 'George W. Johnson, esq. , General Lucius Desha, Capt. Eichard Hawes, and Thomas P. Porter, esq., be, and they are hereby, appointed a committee of organization, in order to carry out the purposes of this convention; and full powers are conferred upon them for that object. ' ' ' Those men were thus commissioned in the cause of conspiracy, treason, and rebellion. By the warrant given them, on themotion of Senator Powell, they went forth and organ- ized or advised and assisted in the organization of armed bands of traitors, and soon thereafter led them into the confederate- camps, where they are yet struggling to con- summate the disruption of the Union and the overthrow of the Constitution and laws of the United States. From the beginning of this great rebellion to the present time Senator Powell has neither done nor said anything in Congress or out of Congress to strengthen or sustain the United States in this mighty struggle for national life. Whilst the true and loyal men of his own State were engaged in an arduous and protracted struggle to briag her to perform her duty to the nation and its government, he not only withheld from them all assistance and sympathy, but gave to the rebels the moral force of his-disloyal position and opinions, and all the aid and comfort which he could render thenkshort of the commission of technical treason. His purposes, if not his acts, have been treasonable. Being an ex-governor of the State of Kentucky, and one of her Sena- tors in Congress, his example and counsel have doubtless been potential with her people and of mischievous tendency in other States. Under the false and delusive cry of neu- trality and peace, and the absurd purpose to protect the soil of the State against invasion from the mUitary force of the United States, he has doubtless assisted to seduce hundreds and hundreds from loyalty and duty into rebellion and treason. He has not supported the Constitution of the United States, but he has sounded the charge to his recruits, and they have made the overt attack upon it. Wherefore— "Be it resolved. That the said Lazarus W. Powoll be, and he is hereby, expelled from the Senate." * » * * , * * * Mr. Wakinson presented papers in relation to the resolution submitted by him this day fbr the expulsion of the Hon. Lazarus W Powell from the Senate; which were re- ferred to the Committee on the Judiciary. Fbiday, March 7, 1862. [Eemarks on the resolution are found on pages 1112, 1113 of the Congressional Globe, part 2, 2d sess. 37th Cong.] 236 SENATE ELECTION CASES. Wednesday, March 12, 1862. Mr. TrumbuU, from the Committee on the Judiciary, to whom was referred the reso- lution submitted by Mr. Wilkinson on the 20th of February for the expulsion of the Hon. Lazarus W. Powell from the Senate, reported it without amendment, and with a recommendation that the resolution do not pass. Thuesday, March 13, 18fi2. The Senate proceeded to consider the resolution for the expulsion of the Hon. Lazarus W. Powell from the Senate; and After debate, On motion by Mr. Powell, Ordered, That the further consideration of the resolution be postponed to to-morrow at 1 o'clock. [The debate is found on pages 1208-1216 of the Congressional Globe, part 2, 2d sess. 37th Cong.] Friday, March 14, 1862, The Senate resumed the consideration of the resolution to expel the Hon. Lazarus W. Powell from the Senate; and After debate. On the question to agree to the resolution, as follows: i ' ' Resolved, That the said Lazarus W. Powell be, and he is hereby, expelled from the Senate," It was determined in the negative — yeas 11, nays 28. Those who voted in the affirmative are Messrs.i Davis, Dixon, Harlan, Howard, Howe, Laneof Indiana, Pomeroy, Sumner, TenEyck, Wade, and Wilkinson. Those who voted in the negative are Messrs. Anthony, Browning, Carlile, Ciark, Cowan, Doolittle, Fessenden, Foot, Foster, Hale, Harris, Henderson, Kennedy, King, Lane of Kansas, Latham, McDougall, Nesmith, Pearce, Rice, Saulsbury, Stark, Thom- son, Trumbull, Willey, Wilson of Massachusetts, Wilson of Missouri, and Wright. So the resolution was not agreed to. [The debate is found on pages 1230-1234 of the Congressional Globe, part 2, 2d sess. 37th Cong.] [Eemarks of Mr. Trumbull, of Illinois, March U, 1862.] " I consider it due to the committee, whose organ I was in reporting adversely to the passage of this resolution, simply to state, not by way of argument, or of provoking reply, the ground upon which the comm.ittee reported adversely to the passage of this resolution. It was not becausg the committee approved of the doctrine of neutrality in Kentucky. In my judgment that was a most' mischievous position, and one wholly untenable, either in AprU, or June, or September; but it is known that the people of Kentucky very generally assumed that ground, and the Government of the United States, if they did not recognize the neutrality of Kentucky, we may at least say paid some respect to it. The resolutions that were adopted, in which they declared that the United States had no right to pass its troops over the soil of Kentucky, were, in my judgment, preposterous. It was downright opposition to the constituted authorities of the Government; wholly unjustifiable. I have no excuse for it. I think it is vrithout excuse. But, sir, such was the position of the great body of the people of that State; and many persons now believe that it was owing to this position of neutrality which was then assumed that Kentucky has at last arrayed herself on the side of the Union. I do not think so; but good Union men doubtless did take that position. ' Well, sir, the time came when, notwithstanding Kentucky had assumed this false attitude, it was necessary that her people should take sides either with the Government or against those arrayed for its protection. Some men who got upon this neutrality plat- form left it sooner than others; some in June, if you please; some earlier; some stood on it till September; but when the time came that Kentuckians had to meet this thing face to face, go with the Government or against it, fight for one or the other, then, sir, the- traitors arrayed themselves, and undertook to get up a provisional government in the State of Kentucky. Breckinridge and the traitors alluded to by the Senator on my right [Mr. Davis] went into the organization; they joined the rebels; the Senator from Kentucky, whose case is under consideration, came here — came to the Government of the United States to discharge his duties here. He does not agree with me in sen- timent; his opinions are not my opinions; I do not agree with the views that he has so often announced here; but he is entitled to his own opinions; and no man is to be expelled from this body because he disagrees with others in opinion. Since Kentucky assumed this position and took sides with the Union nothing has been shown to satisfy the committee, at le^t, that the Senator from Kentucky has had any communication or done anything to favor the cause of the rebellion. I think neutrality did favor it- but, sir, that is now over." ■ ' JAMES F. SIMMONS. 237 [Thirty-seventh Congress — Second session.]. JAMBS P. SIMMONS, Senator from Rhode Island from March 4, 1841, till March 3, 1847, and from March 4, 1857, till he resigned in August, 1862. July 2, 18621 near the end of Mr. SimrQons's'second.term in the Senate, a reEMr. Schuhath states, on the contrary, that he considers himself hound to give Senator Simmons 5 per cent, commission on both orders, and he says he made the offer of commissions to Senator Simmons because he had understood that a commission was paid for obtaining con- tracts, and he thinks it was one of the Messrs. Smith who told him so. It may not he amiss to state that Mr. Simmons, who has appeared before the committee and with great frankness and fairness detailed all the circumstances of the transaction, and an- swered all questions put to him promptly and without hesitation, also stated that he is now, and was at the time, unconscious of having done anything wrong in^actrng as he did, and that he was not aware that it was unlawful, there being no law prohibiting it; that he considered he was not only beneficing his constituents, but was also doing the Government a service by procuring for it responsible contractors for the prompt supply of arms, which was then so greatly needed, he having about that time learned in high quarters that although 500,000 men had recently been called to the field, the Govern- ment had then only 200,000 stand of arms to put in their hands. It further appears that Senator Simmons still holds the notes given him for these commissions as agreed upon, and expects to receive payment on them when they fall due. It also appeared to the committee that both before and after the contract for these arms was made, many other contracts were made for similar arms, between July 1, 1861, and January 1, 1862, and the lowest price paid by. the Department for arms of this description was $20, the price agreed to be paid to Mr. Schubarth ; that $20 was the low- est bid that was made at the Department for the manufacture of such arms during the periods aforesaid, and that the Government lost nothing in consequence t)f the offers of Mr. Schubarth to pay Mr. Simmons a commission for his assistance in this particular, after he had voluntarily undertaken to assist in procuring the contract without reward. The committee on these facts are of opinion that although Senator Simmons may have thought, as he declares, that his act was neither unlawful or wrong (a declaration which his age, respectability, and long, useful, and honorable life, it would seem, shbuld favor, whilst it is true that these very considerations should make a willfnl departure from the line of correct conduct more glaring and censurable'), still, that such a practice is entirely indefensible, and that it was highly improper for a Senator of the United States to have acted thus, even where the Government sustained no loss thereby; but especially at a time when the very existence of the Government and the Union was endangered by a fierce and hvige rebellion, to suppress which the patriotism of the country was everywhere engaged — a rebellion which, first by robbery and afterward by occasioning unlimited requisitions for the purchase of supplies and arms, had subjected the public treasury to untold and frightful drains. That Congress disapproves of Such conduct is manifest from the fact that they have promptly passed a law making it a penal offense hereafter; this will prevent all such acts in future; but to visit a severe and striking penalty upon an act which at the time of its commission was not punishable or forbidden by any public law would be retro- active in its effect, and render the step liable to that objection to which all post facto laws are justly subject. The committee would further state in this, connection that 'it was the common prac- tice until a recent period for members of Congress, to prosecute claims against the Gov- ernment for fees and rewards, and that for many years our most distinguished public men were in the habit of prosecuting claims under such circumstances without censure or criticism; but this was made a misdemeanor by an act of Congress in 1853, and since that period the practice has been discontinued. The committee unanimously report back the resolution, accompanied by the state- ment of facts herein contained (about which there appears to be no dispute), in order that the Senate may take such action in the matter as they in their wisdom and discre- tion may think fit. 240 SENATE ELECTION CASES. [Thirty-eighth Congress and first session Thirty-ninth Congress.] WILLIAM M. FISHBAGK, ELISHA BAXTER, AND -WILLIAM p. SFOW, of ArJcansas, May 21, 1864, the credentials of Mr. Fishbaek, elected to fill the unexpired term, ending March 3, 1865, ofWiUiam K. Sebastian, expelled, were presented; and May 31 the credentials of Mi". Baxter, elected to fill the unexpired term, ending March 3, 1867, of Charles E. Mitchell, expelled, were pre- sented. June 13, the oath of oflace not having been administered, their credentials were referred to the Committee on the Judiciary. At the same time a joint resolution for the recognitioji of the free State government of the State of Arkansas, which had been presented to the Senate June 10, was referred to the committee. June 27, the committee reported in regard to the' election of the Senators substantially as follows: August 16, 1861, the President had declared the inhabitants of Arkansas,^ except those of such parts thereof as should maintain a loyal adhesion to the Union, or might be from time to time occupied, and controlled by United States forces, to be in a state of in- surrection. At the date of the proclamation no part of the State was occupied and controlled by forces of the United States, nor did the inhabitants of any part of the Stale publicly maintain a loyal adhesion to the Union. Plence at that time a state of civil war existed between the inhabit- ants of Arkansas and the United States, and there was not then any organized authority competent to elect Senators of the United States. It is claimed, however, that since that period the greater portion of the State has been thus occupied, and that the inhabitants, loyal to the Union, have reorganized their State government, and have a right through their legislature to choose Senators. The question to be determined by the Senate is, Was the body electing Messrs. Fishbaek and Baxter the legislature of Arkansas? Less than one-fourth of the number of persons who voted for President in 1860 took part in the reorganization of the State government. This,' however, would not be fatal to the reorganization if the State was free from, military control, which is not the case. At the time the claimants were elected, and at this time, the State is occupied by hostile armies. "While this state of things continues, and the right to exercise armed authority is claimed and ex- erted by the military power, it cannot be said that a civil government, set up and continued only by tiie sufferance of the military, is that republican form of government which the Constitution requires the Uniled States to guarantee to every State in the Union. When the rebellion shall have been so far suppressed in the State that the loyal inhabitants thereof shall maintain a State- government by the aid of and not in subordination to the military, they shall then and not before be eniitled to representation in Congress. The committee recommend the adoption of the follow- ing resolution: " Resolved, That William M. Fishbaek and Elisha Baxter are not^entitled to seats as Senators from the State of Arkansas."' This resolution passed the Senate June 29,1864, by a vote of 27 yeas to 6 nays. The joint resolution above referred to was reported adversely at the same time that the report on the credentials was presented. In the next session of Congress a similar joint resolution -was sub- mitted and referred to the same committee, but was not reported. The proceedings of the Senate relating to these joint resolutions are not included in the extracts given below. March 7, 1865, the credentials of Mr. Snow, elected for the term succeeding that for which Mr. Fishbaek had been elected, were presented and referred to the Committee on the Judiciary. The committee recommended that the question be postponed to the next session, and until Congress should take action in regard to the recognition of the alleged existing State governmenti in Ark- ansas. No action was taken. February 26, 1868, the credentials of Messrs. Baxter and Snow having been taken from the files of the Senate, a motion was made that they be referred again to ^ the committee. It was ordered that they lie on the table. No further action was taken on the credentials. The history of the case here given consists of a transcript of the proceedings of the Senate relat- ing to it from Senate Journals, 38th Cong, and 1 st sees. 39th Cong. ; the report of the committee on on the credentials of Messrs, Fishbaek and Baxter from Senate Reports, 1st sess. 38th Cong. (No. 34); the report on the credentials of Mr. Snotv from Senate Keports, 2d sess. 38th Cong. (No. 1, special session) ; also the proceedings~of the Senate from the Journals relating to the payment of mileage to the claimants. Special references to the debates of each day are inserted below. [First session of the Thirty-eighth Congress.] CREDENTIALS OF MESSRS. FISHBACK AND BAXTER. Saturday, May 21j, 1864. Mr. Lane, of Kansas, presented the credentials of the Hon. William M. Fishbaek, elected a Senator of the United States by the legislature of the State of Arkansas to fill the unexpired term of the Hon. William K. Sebastian, who was expelled by a resolution of the Senate of July 11, 1861; which were read. On motion by Mr. Conness that the credentials be referred to the Committee on the Judiciary, , Ordered, That the further consideration thereof be postponed to to-morrow. FISHBACK, BAXTER, AND SNOW. ' 241 Wednesday, May 25, 1864. The Senate resumed the consideration of the motion submitted by Mr. Conness, the 21st instant, to refer the credentials of the Hon. William M. Fishback to the Committee on the Judiciary; and On motion by Mr. Fessenden, Ordered, That the farther consideration thereof be postponed to to-morrow. [The debate is found on pages 2458, 2459 of the Congressional Globe, part 3, 1st sess. 38th Cong.] TCJESDAY, May 31, 1864. Mr. Foot presented the credentials of the Hon. Elisha Baxter, elected a Senator of the United States by the legislature of the State of Arkansas to fill the unexpired term of the Hon. Charles B. Mitchell, who was expelled by a resolution of the Senate July 11, 1861. The credentials were read. Ordered, That they lie on the table. Monday, Jmie 13, 1864. On motion by IN^r. Lane, of Kansas, that the joint resolution, together with the cre- dentials of the Hon. William M. Fishback and the Hon. Elisha Baxter, Senators-elect from the State of Arkansas, be referred to the Committee on the Judiciary. ******* On the question to agree to the motion of Mr. Lane, of Kansas, After debate, On motion by Mr. Wade that the joint resolution and the credentials lay on the table, it was determined in the negative— yeas 5, nays 32. On motion by Mr. Lane, of Kansas, the yeas and nays being desired by one-fifth of the Senators present. Those who voted in the affirmative are Messrs. Chandler, Howard, Richardson, Sum- ner, and Wade. Those who voted in the negative are Messrs. Anthony, Brown, Buckalew, Clark, Con- ness, Davis, Doolittle, Fessenden, Foot, Foster, Grimes, Harlan, Harris, Hendricks, Howe, Johnson, Lane of Indiana, Lane of Kansas, McDongall, Morgan, Morrill, Pomeroy, Powell, Ramsey, Saulsbury, Sherman, SpragUe, Trumbull, Van Winkle, Wilkinson, Willey, and Wilson. On the question to agree to the motion of Mr. Lane, of Kansas, it was determined in the afi&rmative. So it was Ordered, That the joint resolution, with the credentials of the Hon. William M. Fish- back and the Hon. Elisha Baxter, be referred to the Committee on the Judiciary. * ■*«-**** Mr. Lane, of Kansas, presented a proclamation of Major-General Steele, commanding the Department bf Arkansas, declaring that peace has been so far restored in Arkansas as to enable the people to institute proceedings for the restoration of the civil government, and issuing regulations for an election to be held for the adoption or rejection of the State constitution adopted by the convention of citizens of that State; which was referred to the Committee on the Judiciary, and ordered to be printed.* [The debate is found on pages 2895-2907 of the Congressional Globe, part 3, 1st sess. 38th Cong.] Tuesday, June 21, 1864. Mr. Lane, of Kansas, presented a letter t of William M. Fishback, addressed to him, giving a detailed account of his conduct during the present rebellion, and defending himself against charges of disloyalty; which were referred to the Committee on the Ju- diciary, and ordered to be printed. Monday, Jwne 27, 1864. Mr. Trumbull, from the Committee on the Judiciary, to whom were referred the cre- dentials of the Hon. William M. Fishbactand the Hon. Elisha Baxter, elected Senators of the United States by the legislature of the State of Arkansas, submitted a report (No. 94), accompanied by the following resolution: "Resolved, That William M. Fishback and Elisha Baxter are not entitled to seats as Senators from the State of Arkansas. ' ' On motion by Mr. Trumbull, Ordered, That the report be printed. ^Tbis proclamation is found in Senate Miscellaneous, 1st sess. 38th Cong., No. 124. t This letter is found in Senate Miscellaneous, 1st sess. 38th Cong., No. 129. S E 0—16 242 SENATE ELECTION CASES. KBPOET OF COMMITTEE. [The committee consisted of Messrs. Trumbull (chairman), Foster, TenEyck, Harris, Howard, Bayard, and Powell.] In the Senate of the United States. June 27, 1864. — Ordered to be printed. Mr. Trumbull submitted the following report: The Committee on the Judiciary, to whom were referred the credentials of William M. Plshback and Elisha Baxter, claiming seats from the State of Arkansas, report: That the credentials presented are in due form, purporting to be under the seal of the State of Arkansas, and to be signed by Isaac Murphy, governor thereof; and if the right to seats were to be determined by an inspection of the credentials Messrs. Fishback and Baxter would be entitled to be sworn as members of this body. It is, however, admitted by the persons claiming sea/is, and known to the country, that in the spring of 1861 the State of Arkansas, through its constituted authorities, undertook fo secede from the Union, set up a government in hostility to the United States, and maintain the same by force of arms. Congress, in view of the condition of affairs in Arkansas and some other States similarly situated, passed an act July 13, 1861, authorizing the President, in case of an insurrection in any State against the laws of the United States, and when the insurgents claimed to act under the authority of the State, and such claim was not.re- pudiated, nor the insurrection suppressed by the persons exercising the functions of ^ government in such State, to declare the inhabitants of such State, or part thereof where such insurrection existed, to be in a state of insurrection against the United States; and that thereupon all commercial intercourse by and between the same and the citizens of the United States, except under license and upon certain conditions, should cease and he unlawful so long as such condition of hostility should continue. In pursuance ofthis act the President, August 16, 1861, issuedhis proclamation declaring the inhabitants of the State of Arkansas, except the inhabitants of such parts thereof as should maintain a loyal adhesion to the Union and the Constitution, or might be from time to time occupied and controlled by forces of the United States engaged in the disper&ion of said insurgents, to be in a state of insurrection against the United States, and tliat all commercial intercourse between them and citizens of other States was and would be un- lawful, except when carried on under special license, until such insurrection sliould cease. At the date of this proclamation no part of the State of Arkansas was occupied and controlled by the forces of the United States^ nor did the inhabitants of any part of the State at that time publicly maintain a loyal adhesion to the Union and the Consti- tution. Hence, upon the issuing of said proclamation, a state of hostility or civil war existed between the inhabitants of the State of Arkansas and the United States, and there was not at that time any organized authority in Arkansas, loyal to the Constitu- tion, competent to choose or appoint Senators of the United States. It is claimed, how- ever, that since that period the State, or the greater portion of it, has been occupied and controlled by the forces of the United States engaged in the dispersion of the in- surgents, and that the inhabitants of said State, loyal to the Union and the Constitution, have reorganized their State government, and have the right, through the legislature they have instituted, to choose two Senators for said State. The Constitution declares that "the Senate of the United States shall be comnosed of ji questic. determined is. Was the body by whom they were elected clothed with authority to elect Senators; in other words, was it in a constitutional sense, "the legislature of Arkan- sas?" A question similar to this arose some years since between Robbins and Potter, each claiming to have been elected Senator by the legislature of Rhode Island, though by ditferent bodies. In that case the Senate was called upon to decide, and did decide which of the, two bodies, each claiming to be legitimate, was the legislature contem- plated by the Constitution. The Supreme Court of the United States, in the case of Luther vs. Borden, growing out of the political difficulties in Rhode Island in 1841 and 1842, held that "when the Senators and Representatives of a State are admitted into the councils of the Union the authority of the government under which they are ap- pointed, as well as its republican character, is recognized by the proper constitutional authority. And its decision is binding on every other department of the government " q:he claimants laid before the committee a statement of the circumstances attending FISHBACK, BAXTER, AND SNOW. 243 the assembling of the body by which they were elected, in which, after detailing the condition of the State while under rebel control, and prior to September, 1863, they say: ' ' Upon the advent of the Union army the rebels in the State, guerrillas and all, for the most part left with their armies, leaving .about two-thirds of the State comparatively iiree from guerrilla depredation. "The Union men came flocking from the mountains, wheretheyhadlain for two years, to the Federal standard, and nearly every man whom the medical examiners would re- ceive joined the Federal army. Those who were rejected (and their number was enormous, their constitutions hav- ing been broken by exposure and their hardships), and those whom circumstances pre- vented from joining the army, found tbemselves, so far as law was concerned, in a state of chaos. Many of them, living remote from military posts, had. not even the protection of military law. " Immediately they began to agitate the question of a reorganization of their State government. They first moved in primary meetings, and on the 30th of October, 1863, they held a mass meeting in the city of Fort Smith, in which some twenty counties are said to have been represented, and at which they called upon all the counties in the State to elect delegates (after having elected commissioners of election) to a State convention, ■to be held in the city of Little Rook on the 8th day of January, 1864, for the purpose of so amending the constitution as to abolish slavery. Simultaneously with this meeting meetings were held in a number of other counties. In every single one (in ignoranc'e of the action of others in many instances) they declared for a convention and for the aboli- tion of slavery. "Commissioners of election were first elected, and they held the elections for the delegates. "All this was prior to the President's amnesty proclamation. "When the Convention met forty-five delegates were present, representing about one-half of the State. (Several of the delegates failed to attend.) They repudiated the rebel debt, State and Confederate, abolished slavery, and submitted the constitution to the Jieople for their ratification. They also provided for taking the vote for State and county officers and members of the legislature at the same time with the vote for the ratification of the constitution. "The result of those elections was 13,177 for the constitution and 226 against it, an election of State and county officers, an election of delegates to the lower house of Con- gress, and a representation in the State legislature from forty-six of the fifty-four coun- ties of the State." The number of persons in Arkansas who voted for President in 1860 was 54,043, less than one-fourth of whom; as appears from the statement of the claimants, took part in the reorganization of the State government. This, however, would not be fatal to the reorganization, if all who were loyal to the Union had an opportunity to participate, and the State was free from military control. Such, however, is understood not to have been the case. The President had not then, nor has he up to this time, recalled his proclamation, which declared the inhabitants of Arkansas in a state of insurrection against the United States, nor was there any evidence before the committee that said insurrection had ceased or been suppressed. At the time when the body which chose the claimants was elected, when it assembled, and at this time, the State of Arkansas is occupied by hostile armies, which exercise supreme authority within the districts subject to their control. While a portion of Arkansas is at this very time, as the com- mittee are informed, in the actual possession and subject to the control of the enemies of the United States, other parts of the State are only held in subordination to the laws of the Union by the strong arm of military power. While this state of things continues, and the right to exercise armed authority over, a large part of the State is claimed and exerted by the military power, it cannot be said that a civil government, set up and continued only by the sufferance of the military, is that republican form of government which the Constitution requires the United States to guarantee to every State in the Union. When the rebellion in Arkansas shall have been so far suppressed that the loyal in- habitants thereof shall be free to re-establish their State government upon a republican foundation, or to recognize the one already set up, and by the aid and not in subordi- nation to the military to maintain the same, they will then, and not before, in the opin- ion of your committee, be entitled to a representation in Congress, and to participate in the administration of the Federal Government. Believing that such a state of things did not at the time the claimants were elected, and does not now, exist in the State of Arkansas, the committee recommend for adoption the following resolution: Resolved, That William M. Fishback and Elisha Baxter are not entitled to seats as Senatoi-s flom the State of Arkansas, 244 SENATE ELECTION CASES. ■Wednesday, June 29, 1864. On motion by Mr. Trumbull, the Senate proceeded to consider the resolution reported by the Committee on the Judiciary, declaling that William M. Pishback and Elisha Baxter are not entitled to seats as Senators, elect from the State of Arkansas. On motion by Mr. Wade to postpone the. further consideration of the resolution to to-morrow, and that the Senate proceed to the consideration of the bill (H. E. 244) to guarantee to certain States whose governments have been usurped or overthrown a republican form of government, it was determined in the negative — yeas 5, nays 28. On motion by Mr. Wade, the yeas and nays being desired by one-fifth of the Senators present. Those who voted in the affirmative are Messrs. Clark, Harlan, Lane of Kansas, Sher- man, and Wade. Those who voted in the negative are Messrs. Anthony, Brown, Buckalew, Carlile, Chandler, Conness, Cowan, Davis, Pessenden, Poot, Poster, Grimes, Harris, Hendricks, Hicks, Howe, Johnson, McDougall, Morgan, Powell, Ramsey, Eiddle, Sumner, Ten Eyck, Trumbull, Van Winkle, Willey, and Wilson. After debate, On the question to agree to the resolution, it was determined in the affirmative — yeas 27, nays 6. On motion by Mr. Trumbull, the yeas and nays being desired by one-fifth of the Sen- ators present, Those who voted in the affirmative are Messrs. Anthony, Brown, Buckalew, Carlile, Chandler, Clark, Cowan, Davis, Pessenden, Poot, Foster, Hale, Harlan, Harris, Mc- Dougall, Morgan, Morrill, Powell, Eamsey, Eiddle, Saulsbury, Sherman, Sumner, Ten Eyck, Trumbull, Wade, and Wilkinson. Those who voted in the negative are Messrs. Doolittle, Hicks, Howe, Lane of Kansas, Nesmith, and Pomeroy. So it was Sesolved, That William M. Pishback and Elisha Baxter are not entitled to seats as Senators from the State of Arkansas. [The debate is found on pages 3360-3368 of the Congressional Globe, part 4, 1st sess. 38th Cong.] [Special session of Senate, March, 1865.] CREDENTIALS OF ME. SNOW. Tuesday, March 7, 1865. Mr. Lane, of Kansas, presented the credentials of the Hon. William D. Snow, elected a Senator by the legislature of the State of Arkansas for the term of six years commencing on the 4th day of March, A. D. 1865. Objection to the reception of the credentials being made by Mr. Howard, The President pro tempore submitted the question to the decision of the Senate; and, on the question, Shall the credentials be received? After debate, and the consideration of executive business, the Senate adjourned. [The debate is found on pages 1437-1429 of the Congressional Globe, part 2, 2d sess. 38th Cong.] Wednesday, March 8, 1865. The Senate resumed the consideration of the credentials of the Hon. William D. Snow, yesterday presented by Mr. Lane, of Kansas, the reception of which was objected to by Mr. Howard; and After debate, Mr. Howard having withdrawn his objection to their reception, On motion by Mr. Lane, of Kansas, Ordered, That the credentials be referred to the Committee oa the Judiciary. [The debate is found on pages 1429-1432 of the Congressional Globe, part 2, 2d sess. 38th Cong.] Thursday, March 9, 1865. Mr. Trumbull, from the Committee on the Judiciary, to whom were referred the cre- dentials of William D. Snow, claiming to have been elected a Senator, commencing on the 4th day ofMnrch, 1865, submitted a report (No. 1), recommending that the further consideration of the subject be postponed to the next session of Congress.. Qrdered, That the report be printed. PlSaSACK, BAXTER, AND SNOW. 245 EEPOET OF COMMITTEE. [The committee consisted of Messrs. Trumbull (chairman), Harris, Collamer, Sherman, Johnson, Williams, and Hendricks.] In the Senate oe the United States. Maech 9, 1865.— Ordered to he printed. Mr. Trumbull submitted the following report: The Committee on the Judiciary, to whom were referred the credentials of William D. Snow, claiming to have been elected a Senator from the State of Arkansas for six years from the 4th' of March instant, report: That, in the year 1861, the constituted authorities of the State of Arkansas undertook to withdraw that State from the Union, and so far succeeded in the attempt as by force of arms to expel irom the State for a time the authority of the United States, and set up a government in hostility thereto, and, in pursuance of an act of Congress, the inhabit- ants of said State have since been declared to be in a state of insurrection against the United States. The committee therefore recommend that the question of the admission of Mr. Snow to a seat be postponed to the next session of Congress, and until Congress shall take action in regard to the recognition of the alleged existing State government in Arkansas. [First session of the Thirty-ninth Congress.] credentials op messes, baxteb and snow. Monday, February 26, 1866. , A motion was made by Mr. Lane, of Kansas, that the credentials of Elisha Baxter and William D. Snow, as Senators-elect from the State of Arkansas, be taken from the files of the Senate, and that they be referred to the Committee on the Judiciary. A division of the question was called for by Mr. Clark; and. On the question to agree to the first branch of the motion, to wit, that the credentials of Elisha Baxter and William D. Snow as Senators-elect from the State of Arkansas be taken from the files of the Senate, it was determined in the aflBjmative; and. On the question to agree to the second branch of the motion, to wit, and that they be referred to the Committee on the Judiciary, On. motion by Mr. Clark that the credentials lie on the table, it was determined in the affirmative — yeas 29, nays 17. On motion by Mr. Lane, of Kansas, the yeas and nays being desired by one- fifth of the Senators present, Those who voted in the affirmative are Messrs. Anthony, Brown, Chandler, Clark, Conness, Cragin, Creswell, Fessenden, Foster, Grimes, Harris, Henderson, Howard, Howe, Kirkwood, Lane of Indiana, Morrill, Nye, Poland, Pomeroy, Ramsey, Sherman, Sumner, Trumbull, Wade, WUley, Williams, Wilson, and Yates. • Those who voted in the negative are Messrs. Buckalew, Cowan, Davis, Dixon, Doolittle, Guthrie, Hendricks, Johnson, Lane of Kansas, Morgan, Nesmith, Norton, Riddle, Sauls- bury, Stewart, Stockton, and Van Winkle. So it was Ordered, That the credentials lie on the table. * * * * * * * A motion was made by Mr. Lane, of Kansas, to admit the Senators-elect from the State of Arkansas to seats on the floor of the Senate. On motion by Mr. Wade that the motion of Mr. Lane, of Kansas, lie on the table, it was determined in the affirmative — yeas 27, nays 18. On motion by Mr. Lane, of Kansas, the yeas and nays being desired by one-fifth of the Senators present. Those- who voted ia the affirmative are Messrs. Anthony, Brown, Chandler, Clark, Conness, Cragin, Creswell, Fessenden, Foster, Grimes, Harris, Henderson, Howard, Howe, Kirkwood, Lane of Indiana, Morrill, Nye, Poland, Ramsey, Sherman, Sumner, Trumbull, Wade, Williams, Wilson, and Yates. Those who voted in the negative are Messrs. Buckalew, Cowan, Davis, Dixon, Doolittle, Guthrie, Hendricks, .lohuson. Lane of Kansas, Morgan, Nesmith, Norton, Riddle, Sauls- bury, Stewart," Stockton, Van Winkle, and Willey. So it was Ordered, That the motion lie on the table. [The debate is found on pages 1025-1027 of the Congressional Globe, part 3, 1st sess. 39tb Cong.] 246 SENATE ELECTION CASES. MILEAGE TO CLAIMANTS. TFiist session of the Thirty-eighth Congress.] Wednesday, June 29, 1864. Mr. Trumbull asked, and by unanimous consent obtained, leave to submit the follow- ing resolution : "Resolved That the Secretary be instructed to pay, out of the contingent fund of the Senate, the usual mileage of Senators to Elisha Baxter and William M. Fishba<;k, respect- ively, as claimants for seats in the Senate from Arkansas, at the first session of this Congress. ' ' The said resolution was read the first and second times, by unanimous consent, and considered as in Committee of the Whole; and no amendment being made, it was reported to the Senate. Ordered, That it be engrosse'd and read a third time. The said resolution was read the third time by unanimous consent. Resolved, That it pass. [Second session of the Thirty-eighth Congress.] Friday, March 3, 1865. Mr. Lane, of Kansas, submitted the following resolution for consideration: "Resolved, That the Secretary be instructed to pay out of the contingent fund of the Senate the usual mileage to Elisha Baxter and William M. Fishback, respectively, as claimants for seats in the Senate from Arkansas, and Charles Smith and E. King Cutler,' respectively, as claimants for seats in the Senate from Louisiana, at the second session of this Congress. ' ' [Special session of Senate, March, 1865.] Monday, March 6, 1865. Mr. Lane, of Kansas, submitted the following resolution for consideration (the same that was submitted March 3). Wednesday, March 8, 1865. On motion by Mr. Lane, of Kansas, the Senate proceeded to consider the resolution submitted by him on the 6th instant, to pay mileage to certain claimants to seats in the Senate from the States of Arkansas and Louisiana; and The resolution having been modified, on the motion of Mr. Lane, of Kansas, to read as follows: "Resolved, That t^he Secretary be instructed to pay out of the contingent ,fund of the Senate the usual mileage to Elisha Baxter, William M. Fishback, and William D. Snow, respectively, as claimants for seats in the Senate from Arkansas, and Charles Smith and R. King Cutler, respectively, as claimants for seats in the Senate from Louisiana, at the second session of the last Congress," Ordered, That the resolution be referred to the Committee to Audit and Control the Contingent Expenses of the Senate. Thuesday, March 9, 1865. Mr. Morrill, from the Committee to Audit and Control the Contingent Expenses of the Senate, to whom was referred a resolution to pay to certain persons claiming seats in the Senate as Senators from Arkansas and Louisiana the mileage of Senators from those States, reported the resolution without amendment, and submitted a report thereon, ask- ing that the committee be discharged from its further consideration. EEPOET OF COMMITTEE.* [The committee consisted of Messrs. Morrill, Eamsey, and Henderson.] The Committee on the Contingent Expenses of the Senate, to whom was referred a resolution that the Secretary be instructed to pay out of the contingent fund of the Sen- ate the usual mileage to Elisha Baxter, William M. Fishback, and William D. Snow, respectively, as claimants for seats in the Senate from Arkansas, and Charles Smith and R. King Cutler, respectively, as claimants for seats in the Senate from Louisiana, at the second session of the last Congress, having attentively considered the same, report that the committee conceive their authority to be limited by law to the auditing of accounts * Taken from the Congressional Q-lobe, part 2, 2d sess. S8th Cong., page 1435. , PiSflBACK, BAXTUfi, AND SNOW. 2i1 for the ordinary contingent expenses of the Senate, and that mileage is payable only to Senators as members of Congress, and not as claimants for seats in the Senate, ■without an express order of the Senate. The terms of the resolution exclude the inference that the mileage therein contemplated is either ordinary contingent expenses of the Senate or mileage of Senators — members of Congress. Not regarding the resolution in the nature of an order of the Senate to the committee to audit the mileage of the claimants, and failing to perceiTe any authority of law for allowing it, they report the resolution back to the Senate, and respectfully ask to be discharged from its further coiisideration. FRIDAY, March 10, 1865. On motion by Mr. Lane, of Kansas, the Senate proceeded to consider the resolution ij> pay out of the contingent fund of the Senate to certain persons claiming to be Senators duly elected from the States of Arkansas and Louisiana the mileage of Senators from those States; and, After debate. On motion by Mr. WUson that the Senate proceed to the consideration of executive business, it was^determined in the affirmative — ^yeas 24, nays 13. On motion by Mr. Trumbull, the yeas and nays being ^esired by one-fifth of the Sen- ators present, Those who voted in the affirmative are Messrs. Anthony, Brown, Buckalew, Chandler, Conness, Cragin, Creswell, Davis, Foot, Grimes, Guthrie, Howard, Johnson, Lane of Indiana, Morgan, Norton, Nye, Riddle, Sprague, Stewart, Sumner, Wade, Wilson, and Wright. Those who voted in thenegative are Messrs. CoUamer, Dixon, Doolittle, Foster, Har- ris, Lane of Kansas, Pomeroy, Trumbull, Van Winkle, Willey, Williams, and Yatea. So the motion was agreed to. [The debate is found on pages 1436-1440 of the Congressional Globe, part 2, 2d sess. 38th Cong.] 248 SENATE ELECTION CASES. [Thirty-eighth Congress — Second session.] E.KING CUTLER and CHARLES SMITH, AND MICHAEL HAHN, of Louisiana. December 7, 1864, the credentials of Mr. Cutler, elected to succeed Mr. Slidell, whose term had ex- pired March 3, 1S61, and the credentials of Mr. Smith, elected to fill the unexpired term, ending March 3,1865, ofMr. Benjamin, retired, were presented. At the same time there was presented a memorial of citizens of Louisiana remonstrating against their admission to seats in the Senate. The credentials and memorial were referred to the Commii.tee on the Judiciary. January 11, 1865, the committee reported that the claimants were duly elected, and that, but for the fact that, in pursuance of an act of Congress passed July 13, 1861, the inhabitants of the State had been declared in a state of insur- rection, which condition of things had not ceased at the time of the reorganization of the State gov- ernment and the election of the claimants, they would recommend their immediate admission to their seats; that the inhabitants of the State having been declared in a state of insurrection in pur- suance of a law passed by the two Houses of Congress,"the committee deemed it improper for the Senate to admit to seats Senators from Louisiana till by some joint action of both Houses there should be some recognition of an existing State government ; that they recommend the adopt on of an accompanying joint resolution that the United States recognize the State government referred to as the legitimate government of the Slate. This resolution ^was debated, but no action was taken on it, and the claimants were not admitted to seats. The proceedings of the Senate relating to the joint resolution are not included in the extracts giveii below. March 2, 1865, the credentials of Mr Hahn, elected for the term succeeding that for which Mr. Smith had been elected, were presented. A motion was made that they be laid on the table. Ob- jection being made to their reception, the Senate voted to lay this motion on the table. March 9, the credentials were taken from the files and presented- to the Senate, and it was ordered that the further consideration of them be postponed to the next session. ' No further action was' taken on the credentials. The history of the case here given consists of a transcript of the proceedings of the Senate relat- ing to the credentials of the claimants from Senate Journal, 2d sess. 38th Cong., and the report of ■ the committee, with the exception of certain accompanying documents^ from Senate Reports, 2d sess. 38th Cong., No. 117. There were no debates in regard to the credentials of the claimants. The debates on the adop- tion of the joint resolution reported by the committee are found on pages 1011, 1061-1070, 109i-1099, - llOl-Illl of the Congressional Globe, part 2, 38th Cong., 2d sess. . Documents relating to the case are found in Senate Miscellaneous, 2d sess. 38th Cong., Nos. 1,2, and^. Mileage was not allowed to the claimants. For the proceedings of the Senate on a resolution to pay them mileage see latter part of preceding case of Fishback, Baxter, and Snow, page 246. CEEDENTIALS OF MESSRS. CUTLEE AND SMITH. Wednesday, December 7, 1864. The President ^j-o tempore laid before the Senate a letter of the Hon. Michael Hahn, governor of the State of Louisiana, communicating the credlentials of the Hon. Charles Smith and the Hon. R. King Cutler, Senators-elect from that State to the Conp'ess of the United States, with copies of the proceedings of the general assembly of Louisiana in reference to their election ; which was read. Ordered, That they lie on the table, and be printed. Mr. Morggn presented the credentials of the Hon. Charles Smith and the Hon. E. King Cutler, Senators-elect from the State of Louisiana to the Congress of the United States, with copies of the proceedings of the general assembly of Louisiana in reference to their election. • Ordered, That they lie on the table. • Mr. Wade presented a memorial of citizens of Louisiana remonstrating against the admission of Senators or Representatives from the pretended State of Louisiana into the Congress of the United States and the reception of any electoral vote of that State in counting the votes for President and Vice-President of the United States, and praying the passage of an act guaranteeing republican government in the insurrectionary States. Ordered, That it lie on the table and be printed. Thuesday, December 8, 1864. On motion by Mr. Morgan, Ordered, That the crederifcials of the Hon. Charles Smith and the Hon. E. King Cut- ler, Senators-elect from the State of Louisiana, and the proceedings of the legislature of that State in reference to their election, yesterday presented to the Senate, be referred to the Committee on the Judiciary. On motion by Mr. Wade, Ordered, That the memorial of citizens of Louisiana remonstrating against the ad- CUTLER AND SMITH, AND HAHN. 249 mission of Senators or Eepresentatives from the State of Louisiana to seats in the Senate or House of Eepresentatives, yesterday presented by him, be referred to the Committee on the Judiciary. Wednesday, January 11, 1865. Mr. Trumbull, from the Committee on the Judiciary, reported the following resolu- tion; which was considered by unanimous consent, and agreed to: "Resolved, That there be printed for the use of the Committee on the Judiciary cer- tain evidence before them relating to the right to seats of Messrs. Cutler and Smith as Senators from the State of Louisiana." Satueday, February 18, 1865. • Mr. Trumbull, from the Committee on the Judiciary, to whom were referred the cre- dentials of the Hon. Charles Smith and the Hon. E. King Cutler, elected Senators by the legislature of Louisiana, and a memorial of citizens of Louisiana remonstrating against the admission of Senators or Eepresentatives from the State of Louisiana into the Congress of the United States, submitted a report (No. 127), accompanied by a joint resolution (S. 117) recognizing the government of the State of Louisiana. The resolution was read, and passed to a second reading. Ordered, That the report be printed. EEPOET OF COMMITTEE.* [The committee consisted of Messrs. Trumbull (chairman), Foster, Ten Eyclc, Harris, Foot, Powell, and Johnson.] i In the Senate of the United States. Febeuaey 18, 1865. — Ordered to be printed. Mr. Trumbull made the following report (to accompany joint resolution S. No. 117): The Committee on the Judiciary, to whom were referred the credentials of E. King Cutler and Charles Smith, claiming seats from the State of Louisiana, report: That in the early part of 1861 the constituted authorities of the State of Louisiana undertook to withdraw that State .from the Union, and so far succeeded In the attempt as by force of arms to expel from the State for a time the authority of the United States, and set up a government in hostility thereto. - Since that time the United States, as a necessity to the maintaining of its legitimate authority in Louisiana as one of the States of the Union, has been compelled to take possession thereof by its military forces, and, in the absence of any local organizations or civil magistrates loyal to the Union, temporarily to govern the same by military power. " • While a large portion of the State, embracing more than two-thirds of its population, was thus under the control of the military power, steps were taken with its sanction, and to some extent under its direction, for the reorganization of a State government loyal to the Government of the United States. The first action had looking to such re- organization was a registration of the loyal persons within the limits of "military control entitled' to vote under the constitution and laws of Louisiana at the beginning of the re- bellion. The lists thus made up contain the names of between fifteen and eighteen thousand voters, which is represented to be more than half the number of voters in the same parishes previous to the rebellion, and more than two-thirds of the voting popula- tion within the same localities at the time the registry was taken. The next step taken in the reorganization of the State government was the election of State oflcers on the 22d of Febrhary, 1864, under the auspices of the mUitaiy authority acting in conjunction with prominent and influential citizens. At this election 11,414 votes were polled, 808 of which were cast by soldiers and sailors, citizens of Louisiana, who would not have been entitled to vote under the constitutloil of Louisiana as it existed prior to the re- bellion, for the sole reason that they were in the military service, but who possessed in other respects all the qualifications of voters required by that instrument. The balance, 10,606, were legal voters under the constitution of the State prior to the rebellion. The third step in the reorganization of the State government was to call a convention for the amendment of the constitution of the State. Delegates to this convention were elected March 28, 1864, under the joint and harmonious direction of the military authorities, and the State officers who had been elected on the 22d February previous. In a paper submitted to the commltttee by Major-General B^nks he states that delegates were ap- portioned to every election district in the State, both within and beyond the lines, so * A reference to certain docuraent accompanying the report and not here printed is given in the head-note. 250 SENATE ELECTION CASES. that if beyond the lines of the army the people of the State had chosen to participate in that election, the delegates might have been received if they had shown themselves loyal to the Government. They were about 150 in number. All elections subsequent to that for delegates have been ordered and controlled by the representatives of the people. In the organization of the convention it was provided that a majority of the whole number apportioned to the State, if every district within and beyond the lines had been represented, should constitute a quorum for the transaction of business. Every vote in the convention, from a question of order to the ratification of the constitution, was con- ducted under this rule, and was approved by a majority of all the delegates apportioned to the State if every district had been represented. The delegates met in convention, in the city of New Orleans, on the 6th day of April, 1864, remained in session till July 23, 1864, and adopted a constitution, republican in form and in entire harmony with the Constitution of the United States and the great principles of human liberty. This constitution was submitted, by the convention which adopted it, to the people for ratification on the first Monday of September, 1864, and adopted by a vote of 6,836 for to 1,566 against it. At the same time the vote was taken on the adoption of the constitution a legislature was elected, representing all those parishes of the State reclaimed from insurgent control, and embracing about two-thirds of its population. This legislature assembled at New Orleans on the 3d day of October, 1864, and proceeded to put in operation a State gov- ernment by providing for levying and collecting taxes, the establishment of tribunals for the administration of justice, the adoption of a system of education, and such other measures as were necessary to the re-establishment of a State government in harmony with the Constitution and laws of the United States. The S tate government thus inaugu- rated has been in succcessful operation since the period of its establishment, and your committee are assured that if no exterior hostile force is permitted to enter the State, the local State government is fully equal to the maintaining of peace and tranquillity through- out the State in subordination to the Constitution and laws of the United States. The manner in which the new State government was inaugurated is not wholly firee from objection. The local State authorities having rebelled against the Government, and there being no State or local officers in existence loyal to its authority, in taking the initiatory steps for a reorganization some irregularities were unavoidable, and the num- ber of voters participating in this reorganization is less than would have been desirable. Yet, when we take into consideration the large number of voters who had left the State in consequence of the rebellion, who had fallen in battle, or were absent at the time of the election, both in the Union and rebel armies, and the difficulties attending the ob- taining of a full vote from those remaining, in consequence of the unsettled condition of afiairs in the State, and the further fact that the adoption of the amended constitu- tion was not seriously opposed, and therefore the question of its ratification not calculated to call out a fall vote, the number of votes cast is perhaps as large as could have been expected, and the State government which has been reorganized, as your committee be- lieve, fairly represents a majority of the loyal voters of the State. Appended hereto is a copy of the various orders and proclamations issued in regard to the election of State officers, delegates to the constitutional convention, and members of the legislature, and also a copy of election laws and instructions relative to the duties of commissioners of elections, issued for the guidance of officers in conducting said election. Messrs. Cutler and Smith, the claimants for seats, were duly elected Senators by the legislature which convened on the 3d day of October, 1864, and but for the fact that, in pursuance of an act of Congress passed on the 13th day of July, 1861, the inhabitants of the State of Louisiana were declared to be in a state of insurrection against the United States and all commercial intercourse between them and the citizens of other States de^ Glared to be unlawftil, which condition of things had not ceased at the time of the reor- ganization of the State government and the election of Messrs. Cutler and Smith, your committee would recommend their immediate admission to seats. The persons in possession of the local authorities of Louisiana having rebelled against the authority of the United States and her inhabitants having been declared to be in a state of insurrection in pursuance of a law passed by the two Houses of Congress, youi committee deem it improper for this body to admit to seats Senators from Louisiana tUl by some joint action of both Houses there shall be some recognition of an existing State government acting in harmony with the Government of the United States and recognizing its authority. Your committee therefore recommend for adoption, before taWng definite action upon the right of the claimants to seats, the accompanying joint resolution: Resolved ly the Senate and Home of Bepresentaiives of the United States of America in Congress assembled, That the United States do hereby recognize the government of the State of Louisiana inaugurated under and by the convention which assembled on the CtTTLEft AUd smith, AlfD flAflHt. 251 6th day of April, A. D. 1864, at the city of New Orleans, as the legitimate government of said State, entitled to the guarantee and all other rights of a State government tinder the Constitution of the United States. CEBDENTIALS OP ME. HAHN. Thursday, March 2, 1865. Mr. Doolittle presented a certified copy of the proceedings of the legislature of the State of Louisiana, showing that the Hon. Michael Hahn was elected a Senator by the legislature of .that State for the term of six years commencing on the 4th day of March, A. D. 1865; which were read. Objection being made by Mr. Davis to the reception of the paper, On motion by Mr. Trumbull, Ordered, That it lie on the table. [The debate is found on page 1278 of the Congressional Globe, part 2, 2d sess. 38th Cong.] [Special session of Senate, March, 1865. ] Thuesday, March 9, 1865. On motion by Mr. Doolittle, the credentials of the Hon. Michael Hahn, elected a Sen- ator by the legislature of Louisiana, were taken from the files and presented to the Senate, On motion by Mr. Dbolittle, Ordered, That the ftirther consideration thereof be postponed to the next session of Congress. 252 SENATE ELECTION CASES. [Second session Thirty-eighth Congress, and special session of Senate, March, 1865.] JOSEPH SBGAE and JOHN C. UNDEEWOOD, of Virginia. February 17, 1865, the credentials of Mr. Segar, elected to fill the unexpired term ending March 3, 1869, of Lemuel J.Bowden,who died .January 2, 1864, were presented. Amotion was made that they be referred to the Committee on the Judiciary. After debate it was ordered that they he on the table. It appears from the debate that the question raised was whether the body electing Mr. Segar was the legislature of Virginia, a great part of that State being in rebellion. Extracts from remarks given below show the grounds upon which certain Senators proceeded. March 9, 1865, the credentials of Mr. Underwood, elected for the term beginning March 4, 1865, were presented. The oredenlials of Mr. Segar were taken from the files and presented to the Senate. It was ordered that the further consideration of both credentials be postponed to the next session of Congress. Mr, Segar and Mr. Underwood were elected at the same time and by the same legisla- ture. No further action was taken on the credentials. February 18, 1879, a resolution parsed the SenSle that there be paid to Mr. Segar out of the contm- gent fund of the Senate the sum of $5,000, in full compensation for his expenses in prosecuting his claim. A petition for like compensation has been made by the representatives of Mr. Underwood, deceased, on which there have been favorable reports, but no further action by the Senate. The history of the ease here given consists of a transcript of the proceedings of the Senate relating to it from Senate Journals, 2d sess.38th Cong., and extracts from remarks of several Senators. A transcript of the proceedings of the Senate in regard to the allowanceof compensation, from Senate Journals, 43d-48th Cong., with the reports thereon, are also given. Special references to the debates of each day are inserted below. Feiday, February 17, 1865. Mr. Willey presented the credentials of the Hon. Joseph Segar, elected a Senator by the legislature of the State of Virginia to fill the vacancy occasioned by the death of the Hon. Lemuel J. Eowden; which were read. A motion was made by Mr. Sumner that the credentials be referred to the Committee on the Judiciary. On motion by Mr. Howard to amend the motion of Mr. Sumner by adding thereto the words ' ' arid that the committee be instructed to inquire and report upon the election returns and qualifications of the cl nimant, " After debate. On motion by Mr. Sherman that the credentials lie on the table,, Mr. McDongall raised a question of order, to wit: That the subject under considera-, tiou being a question of privilege, affecting the organization of the Senate, the motion to lie on the table, which precluded debate, was not in order. The President pro tempofi decided that a question of privilege, when brought before the Senate for its action, was subject, like other questions, to such motion as any Sen- ator may think proper to submit; and decided that the motion of Mr. Sherman was in order. From this decision Mr. McDougall appealed; and the question being submitted to the Senate, Shall the decision of the Chair stand as the j udgment of the Senate ? it was deter- mined in the affirmative. So the decision of the Chair was Sustained; and, On the question to agree to the motion that the credentials lie on the table, it was determined in the affirmative — ^yeas 29, nays 33. On. motion by Mr. McDougall, the yeas and nays being desired by one-fifth of the Senators present, Those who voted in the affirmative are Messrs. Anthony, Brown, Buckalew, Chandler, Clark, Collamer, Conness, Cowan, Davis, Doolittle, Farwell, Foster, Hale, Harlan, How- ard, Howe, Morgan, Morrill, Nye, Powell, Ramsey, Sherman, Sprague, Sumner, Ten Eyck, Trumbull, Wade, WUkinsoi, and Wilson. Those who voted in the negative are Messrs. Dixon, Hendricks, Johnson, Lane of In- diana, Lane of "Kansas, McDougall, Nesmith, Pomeroy, Richardson, Saulgbury, Van Winkle, Willey, and Wright. So it was Ordered, That the credentials lie on the table. [The debate is found on pages 845-849 of the Congressional Globe, part 2, 2d sess. 38th Coag.] SEGAE AND UNDERWOOD. 253 [Special session of Senate, March, 1865.] Thdesday, March 9, 1865. Mr. Doolittle presented the credentials of the Hon. John C. Underwood, elected a Sen- ator by the legislature of Virginia, for the term of six years commencing on the 4th day of March, A. IT. 1865; which were read. On motion by Mr. Sumner, Ordered, That the further consideration of the credentials be postponed to the next session of Congress. On motion by Mr. Willey, the credentials of the Hon. Joseph Segar, elected a Senator by the legislature of Virginia, were taken from the files and presented to the Senate; and. On motion by Mr. Willey, Ordered, That the further consideration thereof be postponed to the next session of Congress. - [The debate is found on' pages 1433, 1434 of the Congressional Globe,, part 2, 2d sess. 38th Cong.] [Remarks of Mr. Sumner, of Massachusetts, in ftivor of reference to a committee of Mr. Segar's cre- dentials. Aelivered February 17, 1865, and taken from page 846 of the Congressional Globe, part 2, 2d sess. 38th Cong.] " I regret that a question of this magnitude has been precipitated upon the Senate at this late period of the session when there is so much public business which has not yet received the attention of either House of Congress. The Senator from Michigan does not exaggerate its magnitude. Sir, it is much to be a Senator of the United States, with all the powers and privileges pertaining to that oflSce — powers and privileges, legis- lative, diplomatic, and executive; and the question now is whether all these extraordi- nary powers and privileges shall be recognized in a gentleman whose certificate has been sent to the Chair. I thought it my duty, on hearing that certificate read as I entered the Chamber, to move at once its reference to the Committee on the Judiciary. I am astonished that there can be any hesitation in making that reference. Sir, Senators who hesitate show an insensibility to the character of the question. Is the Senate ready to act blindfolded or with the eyes open ? I insist that on a quiestion of this magnitude the Senate shall act with the eyes open, wide open; and I know no other wayin which they can be brought to act so except through the intervention of a responsible committee of this body. Therefore, sir, I proposed that the credentials should be referred to that com- mittee. It will be the duty of the committee, as my friend from Michigan has suggested, to consider in the first place whether a State in armed rebellion like Virginia can have " Senators on this floor. That is a great question, constitutional, political, practical. It will be their duty, then, to consider in the next place whether the gentleman whose cre- dentials have been presented has been chosen legally under the Constitution of the United States by any 'State. Now, sir, I do not intend to prejudge either of these ques- tions. I simply open them now for the consideration of the Senate. ' ' I say, sir, I do not mean to prejudge these questions; but I do insist that a measure of this importance shall not be acted on without due consideration, and in absolute in- difference to those facts which now stare us in the face, glaring upon us every day in every newspaper that we read. Sir, you cannot be insensible to facts. It is in vain that Senators say that Virginia, now in war against the Union, is entitled to repre- resentation on this ,floor, when you have before you the inexorable fact that the greater part of that State is at this moment in possession of an armed rebellion, and when you have before you the other fact filling almost all the newspapers of the land that the body of men who have undertaken to send a Senator to Congress are little more than the com- mon council, of Alexandria; and you have the question distinctly presented to you whether a representative of the common council of Alexandria is to enter this Chamber and.share the same powers and privileges of my honorable friend near me, the Senator from New York [Mr. Morgan], or my friend farther from-me, the Senator from Penn- sylvania [Mr. Cowan]. I merely open these points without now undertaking to decide them, but simply as an unanswerable argument in favor of the reference to the commit- tee." [Extract from remarks of Mr. Willey, of West Virginia, in favor of allowing Mr. Segar to be at once admitted to his seat. Delivered February 17, 1865, and taken from page 848 of the Congressional Globe, part 2, 2d sess. 38th Cong.] ' ' But the honorable Senator and those who think with him have taken the' ground that Virginia is not entitled to representation on this floor. Why,sir, has not the Senate recognized the fact that she is entitled to such rcpresemation during the whole of the session and during the whole of the last session of Congress ? Has th«re not been a Set} 254 SENATE ELECTION CASEg. ator representing the State of Virginia on this floor, participating in the proceedings of this bo^, recording his yeas and nays, and to the extent of his vote controlling the legis- lation of Congress V Has he not been recognized without a murmur and without a word of objection ? So far as that fact js concerned I hold that the Senate is barred by its own action, that it should have excluded the honorable gentleman who represents Vir- ginia on the floor already if Virginia be not entitled as a State to representation on this floor. I put it to Senators to say, if Mr. Bowden had been living to-day, vrhether he would not have been allowed to occupy his seat without let or hindrance, without any objection, the same as his honorable colleague has been allowed to occupy his seat with- out objection. I say, therefore, the action of the Senate itself has recognized the fact not only that Virginia is entitled to representation on this floor, but that she has been and is represented on this floOr; and so long as the honorable Senator who represents Vir- ginia here is allowed to retain his seat it strikes me that it is iiot competent for the Senate to say that Virginia is not entitled to representation on this floor. " I fully concur in all that has been said in regard to the importance of thisquesti(jn. I know very well, for I have been enabled to see it and to f^l it personally, with what eager desire the loyal population of Virginia are looking to the action of Congre^ in this respect to sustain the legislature at Alexandria. I know how all the northwest portion of Virginia, now composing the State of West Virginia, was brought in around the loyal legislature of Wheeling, forming a nucleus, until the whole State was brought under the flag of the Union and under the jurisdiction of the Federal Constitution; and I know that such will be the result in Virginia if its loyal legislature is sustained. County after county — such is my information from beyond the lines to-day, having letters in abundance to that effect — eagerly desire for the time to come when they shall be relieved of the power of ihe rebellion, that they may reorganize the old government of Virginia aroundthe legislature of Alexandria. ' ' But, sir, it is a fact, not only that the Senate of the United States has recognized the existence of Virginia as a State, and her right to be represented on this floor, but the executive branch of the Government has done so, I imagine; for I saw it stated in the papers the other day that the Secretary of State had transmitted the constitutional amendment for the abolition of slavery to the executive of Virginia, and through him it was sent to the legislature to be acted upon, and that legislature had acted upon it and ratified the amendment. We ^hall place' ourselves in a singular position if wereject a gentleman who coiues here accredited with a certificate of election in due form and repulse him from our doors and refuse to allow him a seat on the floor when we have another member representing the same State upon the floor and when the executive branch of the Government recognizes the Virginia legislature at Alexandria as the true legislature, and Governor Peirpoint as the true and legitimate governor of Virginia. I trust that this matter will not be referred at all, but that we will hold out the induce- ment to the loval people of Virginia to rally around the loyal legislature at Alexan- dria." [Remarks of Mr. Sherman, of Ohio, accompanying his motion that the credentials of Mr. Segar be laid on the table. Delivered February 17, 1865, and taken from pages 848, 849 of the Congressional Globe, part 2, 2d sess.38th Cong.] " I wish to submit to the Senate one or two considerations on this subject, and I shall close my remarks by submitting a motion that is not debatable. "The credentials presented to us purport to show that this gentleman was elected a member of this body on the 8th day of December last, and they bear date on the 12th day of December last. They have been held by him for more than sixty days. Every intelli- gent man must have known that the presentation of these credentials Would give rise to debate, would involve grave political questions about which there are radical differences of opinion in this body and throughout the country. The condition, of the State of Vir- ginia, the condition of the rebel States, the effect of the rebellion, all these matters are involved in the question now presented to the Senate. This gentleman holding these papers might at any moment have presented them as a privileged question,' and have stopped all the busines^s of this body until they were disposed of, either referred or acted upon. Now, I ask the Senator whether it is reasonable for us at this perio4.of the ses- sion to stop our deliberations, when all the important bills of the session remain unacted upon, for the purpose of considering thisquestion ? When this gentleman has had these papers in his possession for more than sixty days, when he had the right at any day to present them and call on us to decide the question raised by them, is it reasonable I ask, to present them at this period of the session, and ask us to postpone all the impor- tant business of the session for the purpose of considering them ? It seems to me it is not; and, therefore, without going into the merits of the proposition, which is a very ^rave and diiBcult one, upon which I myself have not made up my opinion, although I SEGAR AND UNDERWOOD. 255^ have read and thought a great deal about it, I submit whether, under the circumstances, the best disposition is not to leave the question to be settled by the next Congres- . ' ' The State of Virginia is now represented by one Senator in this body. The State of West Virginia is ably represented by two Senators. The Senator-elect, or theperson who claims to act as the Senator-elect from Virginia, has slept upon his rights for sixty, ay, seventy days. It seems to me, therefore, that for the short period of the term for which he was elected, only fifteen days, it is scarcely worth while for us to delay the ordinary business of the country and stop and deliberate upon his right to a seat which at any rate will expire on the 4th day of March next.. The question when presented to the next Congress will be one thatwe shall have ample time to decide. It will be presented at the threshold on the 4th of March next. No doubt then a gentleman claiming to be . a Senator from the State of Virginia will present his credentials. Then we can take up the matter and determine it. We can take time, we can deliberate, we can get full in- formation on the subject; and we can dispose of these grave political questions without interfering with the public business. Now we cannot. Under the circumstances, there- fore, I feel it my duty to submit a motion that the credentials do lie upon the table." [Extrjct from remarks of Mr. Doolittle, of Wiaconsin, maintaining that the case of Virginia stood on different grounds from that of Arkansas, in regard to which the Committee on the Judiciary had recommended a postponement of the question until the next session of Congress. Delivered March 9, 1865, and taken from the Congressional Globe, part 2, 2d sess. 3Sth Cong.] "In relation to the State of Virginia 1 think every Senator can easily see that it stands on very different ground perhaps from any of the other States from which Sena- tors have appeared with their credentials. The State ofVirginia, as such, has been recog- nized by this Government in every form, by the executive department, and by Congress. By legislative action we have recognized the government of Virginia as the legitimate government of that State, for it was by the consent of the legislature of that State that we acted when we agreed to a division of the State of Virginia into West Virginia and East Virginia. Whether the action of Congress was wise or unwise in consenting to the erection of the State of West Virginia is not a question which is now to be discussed. The Government has in every form recognized that State. We had until the 4th day of March a Senator from that State, after the division of the State of Virginia. When West Virginia was represented by two Senators on this floor we had two Senators still from old Vir- ginia, one of whom died during the recess of Congress, Hon. Mr. Bowden, and the other _ of whom remained untU the 4th day of March last. So that by the action of this body we have recognized the existence of the State of Virginia — I mean the old State of Vir- ginia independent of the State of West Virginia. «■*, * * * * * "I will finish in a word allthati desire tosay. The Presidential proclamation declaring the population of certain States to be in insurrection excepted from its operation the coun- ties of Alexandria city and county, Berkeley, Accomac, Northampton, Princess Anne, Nor- folk, Norfolk city, Portsmouth city, and Elizabeth city and county, in theStateof Virginia, containing a population of over 175,000; and these counties are now represented in the legislature at Alexandria. ' ' But, Mr. President, I see that the Senate do not desire to take up and dispose of any of these questions in relation to the admission of Senators from any of these States at the present session; and my purpose in rising now is not to press any such action on the Senate, but simply Jx) state in answer to what fell from some Senators that this case of the State of Virginia may in some respects stand on a difierent footing in relation to the proclamation declaring States in insurrection, from the other States, because of the action of Congress already in recognizing the government which is denominated the Peirpoint government as being the true government of the State of Virginia, with which we have dealt, upon whose action we have sufiered the erection of a new State within the limits of Virginia, so that we inay be already committed on that subject in a differ- ent form from what we are in relation to these other States. I agree with the Senator from Missouri in relation to all of them, that it is our duty at the earliest practicable moment to take these free States by the hand and give them the moral support o^ our recognition." COMPENSATION OF MB. SEGAE. [First session of the Forty-third Congress.] Monday, December 8, 1873. Mr. Lewis presented the petition of Joseph Segar, praying to be allowed pay as a Senator fix)m Virginia in 1863; which was referred to the Committee on Privileges and Elections. 256 SENATE ELECTION CASES. Thuesday, Fehruanj 5, 1874. Ml-; Lewis presented the petition of Joseph Segar, praying compensation asa Senator from Virginia' in 1863 and 1864; which was referred to tlie Committee on Privileges aiid Elections. [The debate is found on page 1213 of the Congressional Record, vol. ii, part 2.] [First session of the Forty-fourth Congress.] Wednesday, February 15, 1876. Mr. Withers presented the petition of Joseph 'Segar, praying to be allowed pay as a Senator from Virginia in 1863; which was relerred to the Committee on Claims. Monday, February 21, 1876. On motion' by Mr. Wright, Ordered, That the Committee on Claims be discharged from the further consideration of the petition of Joseph Segar, and that it be referred to the Committee on Privileges and Elections. [Second session of the Forty -fourth Congress.] Saturday, March 3, 1877. Mr. Wadleigh submitted the following resolution for consideration: ' ' Resolved, That the Secretary of the Senate be, and is hereby, authorized and directed to pay lo Joseph Segar compensation and mijeage as a Senator of the United States from the date of the death of Hon. Lemuel J. Bowden to the end of the term for which said Segar was elected. ' ' [The debate"' is found on pages 3195, 2196 of the Congressional Record, vol. v, part 3.] [Second session of the Forty-fifth Congress.] Wednesday, December 12, 1877. On motion by Mr. Withers, Ordered, That the papers of Joseph Segar, on the files of the Senate, be referred to the Committee on Privileges and Elections. Thuesday, June 13, 1878. Mr. Hoar, from the Committee on Privileges and Elections, to whom was referred the memorial of Joseph Segar, submitted a report (No. 509) thereon, accompanied by the following resolution. (Resolution given at end of report. ) EEPOET OF COMMITTEE, t [The committee consisted of Messrs. Wadleigh (chairman), Mitchell, Cameron of Wisconsin, McMillan, Hoar, Ingalls, Saulsbury, Merrimon, and Hill.] In the Senate of the United States. June 13, 1878.— Ordered to he printed. Mr. Hoar, from the Committee on Privileges and Elections, submitted the following report : The Committee on Privileges and Elections, to whom was referred the memorial of Joseph Segar, asking for payment of his salary and mileage as Senator from December 8, A. D. 1864, to March 4, 1869, have considered the same, and respectfully report: It the petitioner had been admitted to the seat which he claimed, his salary and mile- irj;e would have amounted to more than $21,000. He was not admitted, and having never performed the duties of a Senator, under the most recent precedent he is not en- 1 itieil to compensation and mileage as such. By the same precedent, if he prosecuted in ;:iiort faith and on reasonable grounds a claim for such seat, he should be allowed a mod- erate compensation for the expenses incurred by him in such prosecution. On the 23d of February, 1863, Mr. Bowden was elected Senator for Virginia by the legislature assembled at Wheeling, the great portion of Virginia, including Richmond, its Jormer seat of government, being then in rebellion. He was admitted to his seat, the Senate thereby recognizing the legal existence of the State he represented. West Vlr- ' * This debate took place on a previous proceeding not found in the Senate Journal. The resolu- tion was first offered as an amendment to a resolution annulling- the resolution by which 'William K. Sebastian was expelled. ,. ^ . ". fTakcp from Senate Reports, vol. 2, 2d sess. 45tb Cong., No. 509, SEGAE AND UNDERWOOD. 257 ginia was then erected into a separate State. The legislature of Virginia assembled at Alexandria and continued the functions of a State legislature of Virginia. Mr. Bowden continued to represent Virginia in the Senate until hisdeath, on the 2d of January, 1864. December 8, 1864, the petitioner was elected to succeed Mr. Bowden, and prosecuted his claim with diligence. The Alexandria government was recognized as a valid State or- ganization by President Lincoln in his amnesty proclamation of December 8, 1863. It gave its constitutional assent to the adoption of the thirteenth amendment of the Consti- tution of the United States, and its assent is treated by Mr. Seward in his proclamation announcing the adoption of the amendment as necessary thereto. Under these circumstances, the petitioner was well warranted in presenting his claim to a seat in the Senate. If the practice then prevailing were now acted upon he would receive full salary and mileage. The Senate in the cases of Ray and McMillan, at the present session, preferred to allow to such claimants only a compensation for reasonable and moderate expenses. As this is a new rule, it would be clearly un.just to require of claimants to furnish minute items and vouchers. We think the sum of $5,000 areason- able and moderate allowance to Mr. Segar for three years' prosecution of his claim. We therelore recommend the passage of the accompanying resolution: Resolved, That there be allowed and paid out of the contingent fund of the Senate to Joseph Segar the sum of |5,0D0, in full compensation for his expenses in prosecutiDg his claim to a seat in the Senate as a Senator from the State of Virginia. [Third session of the Forty-fifth Congress.] Tuesday, Feibrvury 18, 1879. On motion by Mr. Hoar, the Senate proceeded to consider, as in' Committee of the Whole, the following resolution: '^Resolved, That there be allowed and paid out of the contingent fund of the Senate to Joseph Segar the sum of $5,000, in fuU compensation for his fexpenses in prosecuting his claim to a seat in the Senate as a Senator from the State of Virginia ; ' ' And no amendment being made, it was reported to the Senate. On the question, Shall the resolution be engrossed and read a third time? it was deter- mined in the affirmative — yeas 34, nays 24. On motion by Mr. Sargent, the yeas and nays being desired by one-fifth of the Sen- ators pre-sent, Those who voted in the affirmative are Messrs. Anthony, Barnum, Blaine, Bumside, Butler, Cameron of Wisconsin, ChaflFee, Conover, Davis of West Virginia, Dawes, Dor- sey, Edmunds, Ferry, Garland, Gordon, Grover, Hill, Hoar, Ingalls, JCnes of Florida, Kirkwood, McMillan, Matthews, Merrimon, Mitchell, Morgan, Paddock, Saunders, Sharon, Teller, Voorhees, Wadleigh, Windom, and Withers. Those who voted in the negative are Messrs. Bailey, Bayard, Booth, Cameron of Pennsylvania, Cockrell, Coke, Conkling, Davis of Illinois, Eaton, Harris, Keman, Mc- Creery, McDonald, McPherson, Maxey, Morrill, Randolph, Ransom, Rollins, Sargent, Saulsbury, SpeJcer, Wallace, and Whyte. So it was Ordered, That the resolution be engrossed and read a third time. And the said resolution was read the third time. Resolved, That it pass. [The debate is found on pages 1513-1 515 of the Congressional Record, vol. viii, part 2.] CLAIM OF EEPEESBNTATIVES OF ME. XJNDBEWOOD, DECEASED. [Third session of the Forty-fifth Congress.] Satxjedat, February 22, 1879. Mr. Withers presented the petition of Maria G. Underwood, administratrix of the estate of John C. Underwood, deceased, praying an appropriation to pay the alleged expenses incident to his election as a Senator in Congress from the Stete of Virginia; which was referred to the Committee on Privileges and Elections. [First session of the Forty-seventh Congress.] Tv-ESDKY'January 24, 1882. Mr. Walker presented the petition of Maria G. Underwood, praying an allowance to her as the administratrix of J. C. Underwood, deceased, on account of the election of the said J. C. Underwood to the United States Senate; which was referred to the Com- mittee on Privileges and Elections. S E C-^ 17 258 SENATE ELECTION CASES. MosTDAT, ifa/39, 1862. Mr. Lapham, from the Committee on Privileges and Elections, to whom was referred the petition of Maria G. Underwood, submitted a report (No. 656) thereon accompanied by the following resolution; which was read the first and second times by nnanimons I consent. [Besolation given at end of report.] EEPOET OF COMMITTEE.* [The committee consisted of Messrs. Hoar (chairman), Cameron of Wisconsiii, Teller, Sherman, Frye, Sanlsbnry, Hill of Georgia, Vance, and Pugh.] In the Senate of the United States. May 29, 1882.— Ordered to be printed. Mr. Lapham, from the Committee on Privileges and Elections, submitted the follow- ing report: The Committee on Privileges and Elections, to whom was referred the petition of Maria G. Underwood, administratrix of John C. Underwood, deceased, asking payment for salary and mileage of the said John C. Underwood from the 4th of March, 1865, to the 4th of March, 1871, have considered the same, and respectfully report: That on. the 9th day of December, 1864, the petitioner's intestate was duly elected a Senator from the State of Virginia, for the term of six years from the 4th day of March, 1865; that he received a certificate of such election in the words and figures following: ViEQlNlA, to mt: The legislature of this State having, on the ninth day of December, 1864, in pursuance of the Constitution for the United States, chosen John C. Underwood, esquire, a Senator from this State for six years from the fourth day of March next, I, Francis H. Peirpoint, being governor of the Commonwealth, do hereby certify the same to the Senate of the United States. Given under my hand and the seal of the Commonwealth this the fourteenth day De- cember, 1864. [sealoptieqinia.] p. H. PEIEPOINT. By the governor: ) "W. J. COWING, Secretary of the CbmmonweaUh. That the said John C. thiderwood duly presented his certificate and credentials as aforesaid, on the 9th day of March, 1865, to the Senate of the United States, and njade efforts to obtain his seat in the said Senate, traveling from his home in Virginia to the city of Washington from time to time, and incurred a very considerable expenditure of time and money in so doing; that on the same day of the election of said John C. Under- wood one Joseph Segar was also duly elected a Senator from said State and presented his credentials to the Senate; that neither the said Segar nor the said Underwood were ad- mitted to take their seats iii the Senate; that the said Segar duly presented his memorial to the Senate during the Forty-fifth Congress, at its second session, asking payment for his salary and mileage as Senator from the 9th of December, 1864, to the 4th of March, 1869, which was reierred to the Committee on Privileges and Elections, and the com- mittee recommended the passage of a resolution in words and figures following: "Resolved, That there be allowed and paid out of the contingent fund of the. Senate to Joseph Segar the sum of |5,000, in fuU compensation for his expenses in prosecuting his claim to a seat in the Senate as a Senator from the State of Virginia." Which resolution was adopted by the Senate, and the amount therein named was paid to the said Segar. The report of the committee in Segar's case contained the following statements: " If the petitioner had been admitted to the seat wiich he claimed, his salary and mile- age wouldhave amounted to more than $21,000. He was not admitted and having never performed the duties of a Senator, under the most recent precedent he is not entitled to compen^tion and mileage as such. By the same precedent, if he prosecuted in good faith and on reasonable grounds a claim for such seat, he should be allowed a moderate compensation for the expenses incurred by him in such prosecution " ■ ^"i^a.^P^ ^t^ of February, 1863, the legislature of Virginia assembled at Wheeling, in said State, the greater portion of the State, including the city of Richmond, its former seat of government being tjien in rebellion, and elected one Bowden a United States Senator from that State. Said Bowden was admitted to hi s seat, the Senate thereby * Taken from Senate Reports, 1st sess, 47th Cong., No. 656. ~~~ ■ SEGAR AND UNDERWOOD. 259 recognizing the legal existenCfe of the legislature which elected him. West Virginia, in- cluding the city of Wheeling, was then erected into a separate State. The legislature of Virginia, after such formation of a new State, assembled at the city of Alexandria and continued the functions of a State legislature of Virginia. Said Bowden died on the 2d of January, 18C4, and said Segar was elected to succeed him at the same time of the election of jfohn C. Underwood, as aforesaid. The committee in Segar's case further reported as follows: "The Alexandria government was recognized as a valid State organization by Presi- dent Lincoln in his amnesty proclamation of December 8, 1863. It gave its constitutional assent to the adoption of the thirteenth amendment of the Constitution of the United States, and its assent is treated by Mr. Seward in his proclamation announcing the adop- tion of the amendment as necessary thereto. ' ' Under these circumstances, the petitioner was well warranted in presenting his claim to a seat in the Senate. If the practice then prevailing were now acted upon he would receive full salary and mileage. The Senate in the cases of Ray and McMillen, at the present session, preferred to allow to such claimants only a compensation for reasonable and moderate expenses. As this is a new rule, it would be clearly unjust to require of claimants to furnish minute items and vouchers. We think the sum of $5,000 a reason- able and moderate alio wance to Mr. Segar lor three years' prosecution of his claim. We therefore recommend the passage of the accompanying resolution." The cases of said Underivood and Segar are alike in all respects, except the terms for which they were chosen. It is true no actual service as Senator was rendered by either, but each stood ready to perform his duties whenever the Senate should allo-vv it; that the said Underwood performed no such service was the fault of the Senate, not his. The precedents fully justify the allowan^ to said Segar and the allowance asked by the petitioner. The House of Representatives has fre(iuently paid large sums of money to unsuccessful contestants for seats in that body ; and the Senate, at the same session during which the allowance was made to Segar, also paid Messrs. Ray and McMillen, and has also paid two claimants for seats from the State of Georgia, although none of theiu were allowed to occupy their seats in the Senate. The valuable services rendered by said Underwood to Ijhe Government in its struggle for national supremacy are matters of his- tory and need not be here repeated. We think the sum allowed and paid t^o Mr. Segar is a precedent which should be followed in this case, and recommend the passage of the accompanying resolution: , Resolved, That there be allowed and paid out of the contingent fund of the Senate to Maria G. Underwood, administratrix of John C. Underwood, deceased, the sum of $5,000, in full compensation for the time and expenses of said John C. Underwood in prosecuting his claim to a seat in the Senate as a Senator from the State of Virginia. Wednesday, June 7, 1882. On motion by Mr. Lapham, the Senate proceeded to consider, as in Committee of the Whole, the resolution reported by him on the 29th ultimo from the Committee on Priv- ileges and Elections, to pay Maria G. Underwood, administratrix, $5,000 in full com- pensation for expenses of John C. Underwood in prosecuting his claim to a seat in the Senate. After debate, Ordered, That the further consideration thereof be postponed to to-morrow. [The debate is found on pages 4616-4618 of the Congressional Record, vol. xiii, part 5f ] [Second session of the Forty-seventh Congress.] Satueday, March 3, 1883. On motion by Mr. Lapham, the Senate proceeded to consider, as in Committee of the Whole, the resolution reported by him May29, 1882, to pay Maria G. Underwood $5,000 in full compensation for expenses of John 0. Underwood in prosecuting his claim to a seat in the Senate of the United States. After debate, Ordered, That the said resolution be postponed indefinitely. [The debate is found on pages 3697-3706 of the Congressional Record, vol. xiv, part 4.] [First session of the Forty-eighth Congress.] Monday, December 10, 1883. On motion by Mr. Hoar, Ordered, That the petition and papers of Maria G. Underwood, on the flies of the Sen- ate, be referred to the Committee op Privileges and Elections. 260 SENATE ELECTION CASES. Peiday, Jvne 20, 1884. Mr. Lapham, fi-om the Committee on Privileges and Elections, to whom was referred the petition of Mrs. Maria G. Underwood, administratrix of John C. Underwood, de- ceased, submitted a report (No. 748). thereon, accompanied by the following resolution for consideration. [Eesolution found at end of report:] EEPOET OF COMMITTEB.* [The committee consisted of Messrs. Hoar (chairman), Cameron of Wisconsin, Sher- man, Frye, Lapham, Saulsbury, Vance, Pugh, and Jonas.] In the Senate op the United States. June 20, 1884. — Ordered to be printed. Mr. Lapham, from the Committee on Privileges and Elections, submitted the follow- ing report: ' The Committee on Privileges and Elections, to whom was referred the petition of Maria G. Underwood, administratrix of John C. Underwood, deceased, asking payment for salary and mileage of the said John C. Underwood from the 4th of March, 1865, to the 4th of March, 1871, have considered the same, and respectfully report: That on the 9th day of December, 1864, the petitioner's intestate was duly elected a Senator from the State of Virginia for the term of six years from the 4th day of March, 1865; that he received a certificate of such election in the words and figures following: Virginia, to wit: The legislature of this State having, on the 9th day of December, 1864, in pursuance of the Constitution of the United States, chosen John C. Underwood, esquire, a Senator from this State for six years from the 4th day of March next, I, Francis H. Peirpoint, being governor of the Commonwealth, do hereby certify the same to the Senate of the United States. Given under my hand and the seal of the Common wealth, this the 14th day of Decem- ber, 1864. [seal- of vieginia.] F. H. PEIRPOINT. By the governor: W. J. COWING, Secretary of the Commonweatth. That the said John C. Underwood duly presented his certificate and credentials as aibresaid, on the 9th day of March, 1865, to the Senate of the United States, and made efibrts to obtain his seat in the said Senate, traveling from his home in Virginia to the city of Washington from time to time, and incurred a very considerable expenditure of time and mon6y in so doing; that on the same day of the election of said John C. Un- derwood_ one Joseph Spgar was also duly elected a Senator from said State and presented his credentials to the Senate; that neither the said Segar nor the said Underwood were admitted to take their seats in the Senate; that the said Segar duly presented his me- morial to the Senate during the Forty-fifth Congress, at its second session, asking pay- ment for his salary and mileage as Senator from the 9th of December, 1864, to the 4th of March, 1869, which was referred to the Committee on Privileges and Elections, and the committee recommended the passage of a resolution in words and figures following:^ "Resolved, That there be allowed and paid out of the contingent fund of the Senate to Joseph Segar the sum of |5,000, in full compensation for his expenses in prosecuting his claim to a seat in the Senate as. a Senator from the State of Virginia." Which resolution was adopted by the Senate, and the amount therein named was paid to the said Segar. The report of the committee in Segar's case contained the fol- lowing statements: "If the petitioner had been admitted to the seat which he claimed, his salary and mileage would have amounted to more than $21,000. He was not admitted, and having never performed the duties of a Senator, under the most recent precedent he is not en- titled to compensation and mileage as such. By the same precedent, if he prosecuted in good faith and on reasonable grounds a claim for such seat, he should be allowed a moderate compensation for the gxpeuses incurred by him in such prosecution." A majority of the inhabitants of Virginia were opposed to the secession of the State and its union with the confederate government. After the ordinance of secession was adopted, about fifty-five counties in the northwestern portion of the State united in sending delegates to the convention at Wheeling, on the 11th of June, 1861. * Talcen from Senate Reports, Ist sess. 48th Cong., No. 748. SEGAU AND UNDEEWOOD. 261 This Was done uuder the advice of the Attorney-General and of President Lincoln, that such counties would be recognized as the lawful government of the State of Vir- ginia if they remained loyal to the Government. The convention thus assembled chose a governor, lieutenant-governor, and council to fill the offices vacated by those who had seceded. John 8. Carlile and Waitman T. Willey were chosen United States Senators to occupy the seats vacated by Messrs. Mason and Hunter. They were admitted to their seats in the Senate at the extra session on the 4th of July, 1861. Five members of the House of Eepresentatives were admitted to their seats in that body at the same time, and thus the existence and validity of the government of Virginia were recognized by both Houses of Congress. On the 20th of August, 1861, the convention passed an ordinance to provide for the formation of the State of West Virginia. Delegates from the counties to compose the new State met in convention at "Wheeling, framed a consti- tution for the new State, which was submitted to a vote of the people of said counties in April, 1862, and ratified by an almost unanimous vote. Governor Peirpoint, the newly installed governor of Virginia, called an extra session of the legislature for the 6th of May, 1862, at which session an act was passed giving the assent of the State of Virginia to the formation of the new State. This consent, with a copy of the proposed constitution, were transmitted to Congress with an applica- tion for the admission of West Virginia as a new State. Congress passed an act provid- , ing for its admission, which was approved by the President on the 31st of December, 1862, and West Virginia thus became a State in the Union on an equal footing with the original States. The act provided that until the next census the new State should have three members in the House of Eepresentatives. The legislature at Wheeling passed an act authorizing the removal of the seat of government from Wheeling to Alexandria. An election for State officers was held in the fall of 1863. Governor Peirpoint was elected for a full term. Three members of Congress were chosen, and a Senator to take the place of Mr. Willey, who had been elected a Senator from the new State of West Vir- ginia. The Senators and Eepresentatives thus chosen took their seats at the opening of the session of Congress in December, 1863, and continued .to hold them until the close of that Congress, on the 4th of Mareh, 1865, except Senator Bowden, who died in the winter of 1865, and Mr. Joseph Segar was chosen to fill his place for the unexpired term. All the counties represented in the government of Alexandria, as well as those com- posing the State of West Virginia, were excepted from the proclamation of the President declaring certain States and parts of States in rebellion, and were recognized by the Government as loyal to the United States. The legislatuire at Alexandria called a con- vention, which forever abolished slavery in the State of Virginia, and the legislature adopted the thirteenth amendment to the Constitution of the United States. The votes of twenty-seven States were required to make the ratification of the thirteenth amend- ment valid*, and Virginia, under the Alexandria government, made the twenty-seventh. If Virginia was not a State the thirteenth amendment was never adopted, and slavery has never been legally abolished, nor has West Virginia been constitutionally admitted as a State. In May, 1865, President Johnson issued a proclamation to re-establish the authority of the United States and execute the laws within the limits of the State of Virginia, recognizing Governor Peirpoint as the governor of the State, and directing that he should be aided, so far as might be necessary, in the extension of the State govern- ment throughout the limits of the State. When Congress met in December, 1865, the war had closed, and the State of Virginia, as well the loyal as the disloyal portion, with the other disloyal States, were on some terms to be restored to their relations with the Federal Government. On the first day of the session a resolution was adopted in the House for the appointment of a joint com- mittee of the two Houses to consider that subject and report by bill or otherwise, and providing that until such report no Senator or Member should be admitted to a seat, and that the credentials of all Senators and Members should be referred to said commit- tee. When the resolution came up in the Senate for action Senator Anthony moved to amend the enacting-clause so as to make it a concurrent instead of a joint resolution, and also moved to strike out the following words: "And until such report shall have been made, and final action by Congress on, no member shall be received into either House from any of the so-called Confederate States, and all papers relating to the representation in said States shall be referred to said com- mittee without Tiebate." Senator Anthony stated that this portion of the resolution was a' violation of the Con- stitution, which made the Senate the extausive judge of the election returns and quali- fications of its own members and also a violation of the practice of the.Senate by cutting off debate. Both amendments were adopted by the Senate, and the House concurred in the resolution as amended. This left Messrs. Segar and Underwood, who had been chosen Senators to represent 262 SENATE ELECTION CASfeS. Virgipia from the 4th of March, 1865, free to press their claims to the seats which had been oicnpied ia the Senate since the reorganization of the State government in 1861. It was their duty to the State to press their claims to such seats, and they would have violated their obligations of honor if they had failed to do so. Tlie joint committee of the two Houses made no report until the month of June, 1866. The Senators and Kepresentatives from Tennessee who were denied their seats at the opening of the session were admitted to their seats in the month of July, 18p6. The Senators-elect from Yirginia had a right to expect the same results, and in good faith pressed their claims for recognition. The portion of Virginia from which they were elected was expressly excepted from the President's proclamation declaring the inhabitants of certain States to be in rebellion, . also in the proclamation of emancipation and in the amnesty proclamation. In thk proclamation of emancipation Virginia was included, except the forty-eight counties designated as West Virginia, and also the counties of Berkeley, Accomac, North- ampton, Elizabeth City, York, Princess Anne, and Norfolk, including the cities of Nor- folk and -Portsmouth. These formed the State of Virginia, after, the cession of West Virginia, and had a population entitling the State to three Representatives in the House. They had abolished slavery in 1864, and as to them the proclamation was unnecessary. The government of Virginia, as organized in 1861, continued its functions, notwith- standing the reconstruction acts, until Governor Peirpoint's term expired in April, 1868. The convention that framed the new constitution in 1867 expressly validated and recog- nized as binding all the legislative and judicial acts of the State of Virginia during this whole period. Still later on, in an action brought by the State of Virginia against West Virginia, the Supreme Court of the United States af^rmed the validity of the State government of Virginia and held that its assent in annexing threp counties to West Virginia, which were not included in the original cession, was valid and binding upon the State. Upon these facts and upon the precedents long established, it seems to your committee that Messrs. Segar and TJnderivood would be entitled to their full salaries as Senators. Mr. Sykes, of Alabama, who had been elected by a legislature pronounced by the Senate as illegal, was allowed his compensation and mileage from March, 1873, to May, 1874, the day he was denied his seat. Mr. Pinchback was allowed pay from March, 1873, when he was elected, to March, 1876, when he was refused a seat, aggregating $16,966.90. The practice of the Senate, however, in this respect has been modified, and in the cases of Ray arid McMillen a compensation for reasonable and moderate expenses only . was allowed. Following this rule, the Senate allowed Mr. Segar the sum of ^.5,000 for his expenses incurred in the prosecution of his- claim without an itemized or detailed account of the same. The tact that Mr. Underwood held and was receiving a salary to another office consti- tutes no objection to such allowance. Members of the House of Representatives and of the Senate have been granted such allowances while at the same time drawing their salaries^ Messrs. Kellogg, Ingalls, and Butler were paid their expenses under similar circumstances. If it was the duty of Judge Underwood to make an effort to obtain his seat he should be paid his expenses, although he could not accept the seat whfen awarded to him without vacating his other office. The cases of said Underwood and Segar are alike in all respects, except the terms for which they were chosen. It is true no actual service as Senator was rendered by either, but each stood ready to perform his duties whenever the Senate should allow it^ that the said Underwood performed no such service was the fault of the Senate, not his. The precedents fully justify the allowance to said Segar arid the allowance asked by the petitioner. The House of Representatives has frequently paid large sums of money to un- successful contestants for seats in that body; and the Senate, at the same session during which the allowance was made to Segar, also paid Messrs. Rgiy and McMillen although neither of them were allowed to occupy their seats in the Senate. The valuable services rendered by said Underwood to the Government in its struggle for national supremacy are matters of history and need not here be repeated. We think the sum allowed and paid to Mr. Segar is a precedent which should be followed in this case, and recommend the passage of the accompanying resolution: BeSolved, That there be allowed and paid out of the contingent fund of the Senate to Maria G. Underwood, administratrix of John C. Underwood, deceased, the sum of $5, 000, in full compensation for the time and expenses of the said John C. Underwood in prose- cuting his claim to a seat in the Senate as a Senator from the State of Virginia. Saturday, July 5, 1884. On motion by Mr. Lapham, the Senate proceeded to consider the i;esolution reported from the Committee on Privileges and Elections June 20, 1884, to pay Maria G. Under- SEGAE AND UNDERWOOD; 263 ■wood, widow of John C. Underwood, the sum of $5,000, in full compensation for ex- penses of said John C. Underwood in prosecuting his claim to a seat in the Senate. After debate, On motion by Mr. Plumb, the Senate proceeded to consider bill S. 2203, &c. [The debate is found on pages 6067-6070 of the Congressional Record, vol. xv, part 6.] [Second session of the Forty-eighth Congress.] Feiday, Fdyruary 20, 1885. Mr. Lapham submitted the following resolution for consideration: "Resolved, That there be paid out of the contingent fund of the Senate to Alice E. Un- derwood, executrix of the last will and testament of Maria G. Underwood, administra- trix of John C. Underwood, deceased, the sum of $5,000, in full compensation for the time and expense of the said John C. Underwood in prosecuting his claim to a seat in the Senate as a Senator from the State of Virginia." Satueday, February 21, 1885. The Presiding OfScer (Mr. Allison in the chair) laid before the Senate the resolution yesterday submitted by Mr. Lapham, to pay the executrix of the widow of John 0. Un- derwood his expenses in prosecuting his claim to a seat in the Senate; and the resolution was referred to the Committee to Audit and Control the Contingent Expenses of the Senate. Thuesday, Feinmry 26, 1885. Mr. Jones, of Nevada, from the Committee to Audit and Control the Contingent Ex- penses of the Senate, to whom was referred the resolution sulDmitted by Mr. Lapham on the 20th instant, to pay the heirs of John C. Underwood the amount of his expenses in . contesting his right to a seat in the Senate, reported it without amendment. [Special session of Senate, March, 1885.] Tuesday, March 10, 1885. Mr. Hoar submitted the following resolution; which was referred to the Committee to. Audit and Control the Contingent Expenses of the Senate: "Resolved, That there be allowed and paid out of the contingent fund of the Senate, to Alice G. Underwood, executrix of the last will and testament of Maria G. Underwood, administratrix of John C. Underwood, deceased, the sum of $5,000, in full compensation for the time and expenses of the said John C. Underwood in prosecuting his claim to a seat in the Senate as a Senator from the State of Virginia." Thursday, March 19, 1885. M5, Chace, from the Committee to Audit and Control the Contingent Expenses of the Senate, to whom was referred the resolution submitted by Mr. Hoar on the 10th instant, to pay the expenses of the late John C. Underwood in prosecuting his claim to a seat in the Senate, reported it without amendment. 264 SENATE ELECTION CASES. [Thirty-nmth Congress — ^First session.] JOHN P. STOCKTON, Senator from New Jersey from March 4, 1865, till March 27, 1866, and from March 4, 1869, till March 3, 1875. Mr. Stockton's credentials were presented and he took his seat in the Senate December 4, 1865 At the same time a menaorial of members of the legislature protesting against his admission to a seat in the Senate was presented and ordered to lie on the table. January 8, 1866, the credentials and memorial were referred to the Committee on the Judiciary. January 30 the committee reported that the facts in regard to Mr. Stockton's election were as follows: There was no law in New Jersey prescribing the "manner" of electing Senators, other than that (hey "shall be appointed by the senate and general assembly in joint meeting assembled."' The joint meeting electing Mr. Stockton passed ^ resolution that the candidate receiving a plurality of vote's ©f the members present should be declared duly elected. The joint assembly consisted of eighty-one members. AH were present • when the vote for Senator took place. Mr. Stockton received 40 votes and Mr. Ten Eyck and other persons 41. The question before the Senate was whether a joint convention could prescribe aplu- ralityrule. The committee reported that for the purpose of choosing Senators the joint convention is regarded as the legislature, so that it is vested by the Constitution of the United States with authority to prescribe the manner of electing Senator?; and recommended the adoption of a res- olution that Mr. Stockton was entitled to his seat. Some Senators maintained that in the absence of any law a majorit^wasbytheparliamentary lawof the land necessary to constitute a valid elec- tion, and that the legislature alone, acting in a legislative capacity through its two branches sepa- rately, was competent to prescribe that a plurality should elect. March 23 the resolution reported by the committee passed the Senq^te, Mr. Stockton voting, by a vote of 22 yeas to 21 nays. March 26 the Senate voted to reconsider the vote agreeing to the resolution. It then resolved "that the vote of Mi*. Stockton be not received in determining the question of his seat in the Senate." March 27 the Senate resolved by a vote of 23 yeas to 20 nays that Mr. Stockton was not entitled to his seat. The history of the case here given consists of a transcript of the proceedings of the Senate relating to it from Senate Journal, 1st sess. 39th Cong., and the report of the committee, with the exception of certain accompanying documents, from Senate Reports, 1st sess 39th Cong. , No. 4. Special references to the debates of each day, which are found in the Congressional Globe, part 2, 1st sess. 39th Cong., are inserted below. Monday, December 4, 1865. Mr. Wright presented the credentials of the Hon. John P. Stockton, elected a Senator by the legislature of the State of New Jersey for the term of six years commencing on the 4th day of March, A. B. 1865. The credentials were read and the oaths prescribed by law were administered to Mr. Stockton, and he took his seat in the Senate. Mr. Cowan presented a memorial of members of the senate and house of represents- tives of the State of New Jersey protesting against the admission of the Hon. John P. Stockton to a seat in the Senate as a Sfenator from that State. Orderedj That it lie on the table. Monday, January 8, 186B. On motion by Mr. Cowan, Ordered^ That the credentials of the Hon. John P. Stockton, United States Senator from the State of New Jersey, together with the memorial of the members of the senate and house of assembly of the State of New Jersey protesting against the admission of the Hon. John P. Stockton to a seat in the United States Senate as a Senator from that State, be referred to the Committee on the Judiciary. Tuesday, •./anuary 30, 1866. Mr. Trumbull, from the Committee on the Judiciary, to whom were referred the cre- dentials of the Hon. John P. Stockton, elected a Senator by the legislature of the State of New Jersey, and the protest of certain members of the legislature of the said State against the validity^ of his election, submitted a report (No. 4), accompanied by the following resolution: ^^Besolvedf That John P. Stockton was duly elected, and k entitled to his seat, as a Senator from the State of NewJerseyforthetermof six years from the 4th dav of March. 1865." , ^ .> Orderedj That the rejwrt, with the accompanying credentials and protest, be printed. JOHN P STOCKTON. 265 EEPOET CF COMMITTEE.* [The committee consisted of Messrs. Trxunbtill (chairman), Harris, Clark, Johnson, Poland,' Stewart, and Hendricks.! In the Senate- op the United States. Jantjaey 30, 1866.— Ordered to be printed. Mr. Trumbull submitted the follo-wlng report: The Committee on the Judiciary, to whom were referred the credentials of John P. Stockton, claiming to have been elected a Senator from the State of Ngw Jersey for six years from the 4th day of March, 1865, together with the protest of certain members of the legislature of said State against the validity of his election, submit the following report: The only question involved in the decision of Mr. Stockton's right to a seat is whether an election by a plurality of votes of the members of the legislature of New Jersey in joint meeting assembled, in pursuance of a rule adopted by the joint meeting itself, is valid. The protestants insist that it is not, and they deny Mr. Stockton's right to a seat, because, as they say, he was not appointed by a majority of the votes of the joint meet- ing of the legislature. The legislative power of the State of New Jersey is vested by the State constitution in a senate and general assembly, which are required, for legislative purposes, to meel! separately, but which, for the appoiatment of various ofiicers, are required to assemble in- joint meeting; and when so assembled, are, by the constitution itself, styled the ' ' legislature in joint meeting. " The constitution of New Jersey does not prescribe the manner of choosing United States 'Senators; as, indeed, it could not, the Constitution of the United States having vested that power, in the absence of any law of Congress, exclusively in the legislature; but it does constitute the two houses one body for the purpose of appointing certain State offi- cers. The statute of New Jersey declares that "United State Senators, on the part of that State, shall be appointed by the senate and general assembly in joint meeting assembled ; ' ' but it does not prescribe any rules for the government of the joint meeting, nor declare the manner of election. The practice in New Jersey has been for the joint meeting to prescribe the rules for its own government. In 1794 fifteen rules were adopted, the first two of which are as follows: "1. That the election of State oflicers during the present session be viva voce, unless when otherwise ordered ; and that all officers be put in nomination at least one day before their election. "2. That the chairman shall not be entitled to vote except in case of a tie, and then to have a easting vote." The, other thirteen rules related chiefly to the method of conducting the proceedings. Each joint meeting which has since assembled has adopted its own rifles, usually those of the preceding joint meeting, sometimes, however, with additions or exceptions. In 1851 the following additional rule was adopted: ^^ Resolved, That no person shall be elected to any ofiiee, at any joint meeting during the present session, unless there be a majority of all the members elected personally pres*it, and agreeing thereto. " In 1855 the joint meeting, after adopting the fifteen rules of the preceding joint meet- ing, added the following: ' ' That all candidates for office, upon receiving a majority of the votes cast by this joint meeting, shall be declared duly elected." The joint meeting of 1861 adopted the rales of the preceding joint meeting for its own government, among which were the following: "%. That the election of State officers during the present session be viva Doce, unless when otherwise ordered. "15. That in all questions the chairman of the joint meeting be called upon to vote in his turn as one of the representatives in the senate or assembly; but that he have no casting vote as chairman. ' ' 16. That all candidates for office, upon receiving a majority of the votes cast by this joint meeting, shall be declared to be duly elected. " The same rules were adopted by each joint meeting from 1861 to 1865. The joint meeting which assembled February 15, 1865, and at an adjourned session of which Mr. Stockton was appointed Senator, adopted, at its first meeting, the rules of * A reference to the documents accompanying the report is given in the head-note.' 266 SENATE ELECTION CASES. * the preceding joint meeting, except the sixteenth rule, in lieu of which the following was adopted : ' ' Besolved, That no candidate shall be-deolared elected unless upon receiving a majority of the votes of all the members elected to both houses of the legislature." After having appointed various officers under the rules which had been adopted at the assembling of the joint meeting, the following rule was adopted: "Besolved, That the vote for county judges and commissioners of deeds be taken by acclamation, and that the counties in which vacancies exist be called in alphabetical order. ' ' Acting under this rule, quite a number of officers were appointed by acclamation. Not completing its business the joint meeting adjourned from time to time till March 15, when the following rule was adopted: ' ' Besolved, That the resolution that no candidate shall be declared elected unless upon receiving a majjority of the votes of all the members elected to both houses of the legisla- ture be rescinded, and that any candidate receiving a plurality of votes of the members present shall be declared duly elected." Every member of both houses, eighty-one in all, was present and voting when the above resolution was passed, and it was carried by a vote of 41 in the affirmative, of vrhom eleven were senators and thirty representatives, to 40 in the negative, of whom ten were senators and thirty representatives. The joint meeting then proceeded to the election of a United States Senator, with the following result: Hon. John P. Stockton, 40 votes; Hon. J. C. TenEyck, 37 votes; J. W. Wall, 1 vote; P. D. Vroom, 1 vote; F. T. Frelinghuysen, 1 vote; H. S. Little, 1 vote. Whereupon John P. Stockton, having received a plurality of all the votes cast, was declared duly elected. The joint meeting then proceeded to the election of various other officers, having completed which, it rose. The credentials of Mr. Stockton are under the great seal of state, signed by the gov- ernor and in due form. No objection appears to have been made at the time to the , election. Its validity is now called in question by a protest dated March 20, 1865, and signed by eight senators and thirty members of the general assembly. The Constitution of the United States declares that the Senate of the United States ' ' shall be composed of two Senators from each State, chosen by the legislature thereof, ' ' and that ' ' the times, • places, and manner of holding election for Senators and Representatives shall be prescribed in each State by the legislature thereof, but the Congress may at any time by law make or alter such regulations, except as to the places of choosing Senators. " The right to choose United States Senators in a joint meeting of the two houses which compose the legislature of a State has been too long and too frequently exercised to be now brought in question. This has been the manner of election in some States frofli the beginning, and is now the manner in most of them. For the' purpose of choosing United States Senators the joint meeting of the two houses is regarded as the legislature, and especially would this be so in New Jersey, where the joint meeting is by the constitution of the State denominated a legislature. It has uni- formly been held that when the two branches of a legislature meet in joint convention to elect a United States Senator they are merged into one and act as one body, so that an election may be effected against the entire vote of the members of one house if the person voted for receive the requisite number of votes from members of the other. It being, then, settled that the two houses of a ],egislature in joint meeting assembled con- stitute the legislature, vested by the Constitution of the United States with authority, acting as one body, to elect a Senator, the question is: Did the joint meeting of the senate and general assembly of New Jersey, duly convened in pursuance of a resolution previ- ously concurred in by each house separately, choose John P. Stockton United States Senator? That it was competent for a plurality to elect, if a law to that effect had been prescribed by competent authority, will hardly be questioned. This is the rule very generally, if not universally, adopted in the election of members of the House of Representatives, who are ' ' chosen every second year by the people of the several States, ' ' and no one questions the ' validity of the election of a Representative by a plurality vote when the law authorizes a plurality to elect. It is however insisted, and truly, that no law of New Jersey author- izes a p^lurality to elect. The laws of New Jersey are silent on this subject, but they do authorize a joint meeting of the two houses of the legislature to appoint & Senator, and it has been the uniform practice of this joint meeting since the foundation of the Govern- ment to prescribe the rules for its own government. These rules as to the number of votes necessary to effect an election have varied at different times, sometimes requiring a majority of all the members elected to both houses of the legislature, sometimes a mar jority only of those present, and in the case under consideration only a plurality. Suppose, under the rule first stated, but seventy- nine members had been present in the joint meeting, and forty had voted for the same person, would he have been elected; and JOEiN P. STOtikTON. 267 if not, wliy not ? Seventy-nine out of eighty-one would have constituted a quorum , and forty would have been a majority of those present. The only reason why such a vote would not have made an election would be the existence of the rule adopted by the joint meeting, declaring that "no candidate should be elected unless receiving a majority of the votes of all the members elected to both houses of the legislature. ' ' While that rule was in force no presiding officer would have thought of declaring a candidate elected, nor would any candidate have supposed himself elected because he received a majority of the votes cast, unless such majority was a majority of all the members elected to the legis- lature. Under the other rule, "that a person receiving a majority of the votes of those present should be declared elected," who would doubt the validity of an election by 31 out of 60 votes if only so many had been cast? If the joint meeting had the right to prescribe at one time that it should require a majority of all elected to the legislature to elect, at another time that a majority of those present might elect, and at still another time that elections might be had by acclamation, it had the right to prescribe that a plu- rality should elect; and when any candidate received a plurality he thereupon became elected, not simply by the^will of those who voted for him, but by the will of the joint meeting, which had previously, by a majority vote, resolved that such plurality should elect. It might be urged in this case, with much plausibility, that inasmuch as the constitu- tion of New Jersey recognizes the two houses in joint meeting as a legislature, that such joint meeting was the very body on whom the Constitution of the United States had con- ferred the power to prescribe "the times, places, and manner of holding elections for Senators;" but your committee prefer placing the authority of the joint meeting to prescribe the plurality rule on the broader ground that in the absence of any law, either of Congress or the State, on the subject, a joint meeting of the two houses of a legislature, duly assembled and vested with authority to elect a United States Senator, has a right to prescribe that a plurality may elect, on the principle that the adoption of such a rule by a majority vote in the first instance makes the act, subsequently done in pursuance of such majority vote, its own. The committee recommend for adoption the following resolution: Resolved, That John P. Stockton was duly elected and is entitled to his seat as a Senator from the State of New Jersey for the term of six years from the 4th day of March, 1865. Thuesday, March 22, 1866. On motion by Mr. Trumbull, the Senate proceeded to consider the resolution reported by the Committee on the Judiciary on the 30th of January, on the right of the Hon. John P. Stockton to a seat in the Senate of the United States as a Senator from the State of New Jersey; which resolution is as follows: ^'Resolved, That John P. Stockton was duly elected and is entitled to his seat as a Senator from the State of New Jersey for the term of six years from the 4th day of » March, 1865." On motion by Mr. Clark to amend the resolution in line 1, by inserting after the word "was" the word "not," and after the word "is" the word "not," and, After debate and the consideration of executive business, the Senate adjourned; [The debate is found on pages 1564-1573 of the Congressional Globe referred to in the head-note.] Feiday, Mttrch 23, 1866. The Senate resumed the consideration of the resolution reported by the Committee on the Judiciary on the 30th of January, on the right of the Hon. John P. Stockton to a seat in the Senate of the United States as a Senator from the State of New Jersey; which resolution is as follows: "Resolved, That John P. Stockton was duly elected and is entitled to his seat as a Senator from the State of New Jersey for the term of six years from the 4th day ot March, 1865." After debate, on the question to agree to the amendment proposed by Mr. Clark to the resolution, to wit,' in line 1 insert after the word "was" the word "not," and after the word "is" the word not," it was determined in the negative — yeas 19, nays 21. On motion by Mr. Clark, the yeas and nayS' being desired by one-fifth of the Senators present. Those who voted in the affirmative are Messrs. Brown, Chandler, Clark, Conness, Cragin, Creswell, Fessenden, Grimes, Howe, Kirkwood, Lane of Indiana, Nye, Pomeroy, Ramsey, Sherman, Sprague, Sumner, Wade, and Yates. Those who voted in the negative are Messrs. Anthony, Buckalevr, Cowan, Davis, Foster, Guthrie, Harris, Henderson, Hendricks, Johnson, Lane of Kansas, McDougall, Morgan, Nesmith, Norton, Poland, Eiddle, Saulsbury, Stewart, Trumbull, and Willey. So the amendment was not agreed to. 268 SENATE ELECTION CASES. On the question to agree to the resolution, it was determined in the affirmative — yeas 22, nays 21. On motion by Mr. Fessenden, the yeas and nays being desired by one- fifth of the Sen- ators present, Those who voted in the affirmative are Messrs. Anthony, Buckalew, Cowan, Davis, Foster, Guthrie, Harris, Henderson, Hendricks, Johnson, Lane of Kansas, McDougall, Morgan, Nesmith, Norton, Poland, Riddle, Saulsbury, Stewart, Stockton, Trumbull, and Willey. Those who voted in the negative are Messrs. Brown, Chandler, Clark, Conness, Cragin, . Creswell, Fessenden, Grimes, Howe, Kirkwood, Lane of Indiana, Morrill, Nye, Pome- roy, Ramsey, Sherman, Sprague, Sumner, Wade, Wilson, and Yates. So it was Resolved, That John P. Stockton was duly elected and is entitled to his seat as a Senator from the State of New Jersey for the term of six years from the 4th day of March, 1865. [The debate is found on pages 1589-1602 of the Congressional Globe referred to in the head-note.] Monday, March 26, 1866. A motion was made by Mr. Sumner that the Journal of Friday, 23d March, 1866, be amended by striking out the vote of Mr. Stockton on the question of his right to a seat in the Senate. Pending debate thereon, the following message was received, &c. ******* After farther debate, Mr. Sumner asked and obtained leave of the Senate to withdraw his motion; and. The motion having been withdrawn. On motion by Mr. Poland that the Senate reconsider its vote on Friday last agreeing to the following resolution: ^'Resolved, That John P. Stockton was duly elected and is entitled to his seat as a Senator from the State of New Jersey for the term of six years from the 4th day of March, 1865," It was determined in the affirmative; and The question recurring upon said resolution, Mr. Sumner, by unanimous consent, submitted the following resolution: ^'Resolved, That the vote of Mr. Stockton be not received in determining the question of his seat in the Senate. ' ' The Senate proceeded, by unanimous consent, to consider the said resolution; and On motion by Mr. Sumner that the resolution be referred to the Committee on the Judiciary, with instructions to report on Thursday next, it was determined in the neg- ative — yeas 18, nays 22. On-motion by Mr. Johnspn, the yeas and nays being desired by one-fifth of the Sen- ators present, s Those who voted in the affirmative are Messrs. Anthony, Buckalew, Cowan, Davis, Guthrie, Harris, Hendricks, Johnson, Lane of Kansas, McDougall, Nesmith, Norton, Riddle, Saulsbury, Sherman, Trumbull, Van Winkle, and Willey. Those who voted in the negative are Messrs. Brown, Chandler, Clark, Conness, Cragin, Creswell, Fessenden^ Foster, Grimes, Howard, Howe, Kirkwood, Lane of Indiana, Nye, Poland, Pomeroy, Ramsey, Sprague, Sumner, Wade, Wilson, and Yates. . On the question to agree to the resolution, it was determined in the affirmative. So it was Resolved, That the vote of Mr. Stockton be not received in determining the question of his seat in the Senate. The question again recurring upon the resolution affirming the right of the Hon. John P. Stockton to his seat in the Senate, On motion by Mr. Johnson that the further consideration of the resolution be post- poned to Thursday next, After debate. On motion by Mr. Trumbull, the Senate adjourned. [The debate is found on pages 1635-1648 of the Congressional Globe referred to in the head-note.] Tuesday, March 27, 1866. The Senate resumed the consideration of the resolution reported by the Committee on the Judiciary, affirming the right of the Hon. John P. Stockton to his seat as a Senator rom the State of New Jersey; and After debate, On the question to agree to the motion, yesterday submitted by Mr. Johnson, that the JOHN P. STOCKTON. • 269 further consideration of the resolution be postponed to Thursday next, it was determined in the negative — ^yeas 18, nays 23. On motion by Mr. Johnson, the yeas and nays being desired by one-fifth of the Sena- tors present, ' -Those who voted in the affirmative are Messrs. Anthony, Buckalew, Cowan, Davis, Guthrie, Harris, Hendricks, Johnson, Lane of Kansas, McDougall, Morgan, Nesmith, Norton, Riddle, Saulsbury, Trumbull, Van Winkle, and Willey. Those who voted in the negative are Messrs. Brown, Chandler, Clark, Conness, Cragin, Creswell, Fessenden, Foster, Grimes, Henderson, Howard, Howe, Kirkwood, Lane of In- diana, Nye, Pomeroy, Ramsey, Sherman, Sprague, Sumner, Wade, Wilson, and Yates. So the motion was not agreed to. The question recurring on the resolution. On motion by Mr. Clark to amend the resolution by striking out after the word "Stockton, "in line 1, the words "was duly elected, and is entitled to his seat as a Sena- tor from the State of New Jersey for the term of six years from the 4th day of March, 1865, ' ' and in lieu thereof inserting, ' ' is not entitled to a seat as Senator from the State of New Jersey for the term of six years from the 4th day of March, 1865," Mr. Saulsbury raised a question of order, to wit, that the proposed amendment is in effect the same proposition which the Senate had once rejected, and was therefore not in order. The President pro tempore decided that the proposed amendment, being a proposition different in its terms from that upon which the Senate had voted, was not open to the objection raised, and was in order. - After debate. On motion by Mr: Davis to amend the amendment proposed by Mr. Clark by striking out all after the word in the flxst line, and in lieu thereof inserting, "That the legislature of New Jersey having convened in joint meeting to choose .a Senator to the Congress of the United States for six years from the '4th of March, 1865, and said legislature in such joint meeting having passeid an order that such election should be made by a plurality vote of that joint meeting; and on the first ballot taken by said meeting, John P. Stockton having received 40 out of the 81 votes of the members of both houses of the legislature constituting such legislature in such joint meeting, and ev«ry other person voted for a less number, and the presiding officer of said joint meeting having then announced to it that the said John P. Stockton was elected Senator to Con- gress, and there being no objection or dissent expressed to said annunciation, the said John P. Stipckton was duly elected a Senator from said State, and is entitled to hold his scat as such from the 4th of March, 1865," It was determined in the negative — ^yeas 15, nays 27. On motion by Mr. Clark, the yeas and nays being desired by one-fifth of the Senators present. Those who voted in the afSrmative are Messrs. Buckalew, Cowan, Davis, Doolittle, Guthrie, Hendricks, Johnson, McDougall, Morgan, Nesmith, Norton, Riddle, Saulsbury, Van Winkle, and Willey. Those who voted in the negative are Messrs. Anthony, Brown, Chandler, Clark, Con- ness, Cragin, Creswell,^ Fessenden, Grimes, Harris, Henderson, Howard, Howe, Kirk- wood, Lane of Indiana, Nye, Poland, Pomeroy, Ramsey, Sherman, Sprague, Sumner, Trumbull, Wade, Williams, Wilson, and fates. The question recurring on the amendment proposed by M.T. Clark, On motion by Mr. McDougall that the further consideration of the resolution be post- poned to Wednesday next at 1 o'clock, it was determined in the negative — yeas 15, nays 28. On motion by Mr. McDougall, the yeas and nays being desired by one-flfth of the Sen- ators present. Those who voted in the affirmative are Messrs. Buckalew, Cowan, Davis, Doolittle, Guthrie, Hendricks, Johnson, McDougall, Morgan, Nesmith, Norton, Riddle, Saulsbury, Van Winkle, and Willey. Those who voted in the negative are Messrs. Anthony, Brown, Chandler, Clark, Con- ness, Cragin, Creswell, Fessenden, Foster, Grimes, Harris, Henderson, Howard, Howe, Kirkwood, Lane of Indiana, Nye, Poland, Pomeroy, Ramsey, Sherman, Sprague, Sum- ner, Trumbull, Wade, Williams, Wilson, and Yates. On the question to agree to the amendment, it was determined in the affirmative — yeas 22, nays 21. On motion by Mr. Cla,rk, the yeas and nays being desired by one-flfth of the^enators present, Those who voted in the affirmative are Messrs. Brown, Chandler, Clark, Conness, Cragin, Creswell, Fessenden, Grimes, Howard, Howe, Kirkwood, Lane of Indiana, Nye, Pomeroy, Ram.sey, Sherman, Sprague, Sumner, Wade, Williams, Wilson, and Yates. Those who voted in the negative are Messrs. Anthony, Buckalew, Cowan, Davis, Doo- 270 SENATE ELECTION CASES. little, Gnthrie, Harris, Hendeison, Hendricks, Johnson, Lanu of Kansas, McDongall, Morgan, Nesmith, Norton, Poland, Biddle, Sanlsbury, Trumbull, Van Winkle, and Willey. So the amendment was agreed to; and On the question to agree to the resolution aa amended, it was determined in the affirm- ative — yeaa 23, nays 20. On motion by Mr. Hendricks, the yeas and nays being desired by one-fifth of the Sen- ators present. Those who voted in the afiSrmative are Messrs. Brown, Chandler, Clark, Conness, Cra- gin, Creswell, Fessenden, G-rimes, Howard, Howe, Kirkwood, Lane of Indiana, Nye, Pomeroy, Eamsey, Eiddle, Sherman, Sprague, Sumner, Wade, Williams, Wilson, and Yates. Those who voted in the negative are Messrs. Anthony, Buckalew, Cowan, Davis, Doo- little, Guthrie, Harris, Henderson, Hendripks, Johnson, Lane of Kansas, McDougall, Morgan, Nesmith, Norton, Poland, Sanlsbury, Trumbull, Van Winkle, and Willey. So it was Besolved, That John P. Stockton is not entitled to a seat as Senator from the State of New Jersey for the term of six years from the 4th day of March, 1865. On motion by Mr. Clark that the vote on the passage of the said resolution be recon- sidered, On motion by Mr. Hendricks that the further consideration of the motion to recour sider be postponed to to-morrow at 1 o'clock, it was determined in the negative — ^yeas 21, nays 23. On motion by Mr. Hendricks, the yeas and nays being desired by one-fifth of the Sen- ators>present, Those who voted in the affirmative are Messrs. Anthony, Buckalew, Cowan, Davis, Doolittle, Guthrie, Harris, Henderson, Hendricks, Johnson, Lane of Kansas, McDougall, Morgan, Nesmith, Norton, Poland, Eiddle, Saulsbuiy, Trumbull, Van Winkle, and Willey. Those who voted in the negative are Messrs. Brown, Chandler, Clark, Conness, Cragin, Creswell, Fessenden, Grimes, Howard, Howe, Kirkwood, Lane of Indiana, Nye, Pom- eroy, Eamsey, Sherman, Sprague, Sumner, Wade, Williams, Wilson, and Yates. On the question to agree to the motion of Mr. Clark, to reconsider the vote on the passage of the resolution, it was determined in the negative — ^yeas 20, nays 22. On motion by Mr. Clark, the yeas and nays being desired by one-fifth of the Senators present, Those who voted in the affirmative are Messrs; Anthony, Buckalew, Cowan, Davis, Doolittle, Guthrie, Henderson, Hendricks, Johnson, Lane of Kansas, McDougall, Mor- gan, Nesmith, Norton, Poland, Eiddle, Sanlsbury, Trumbull, Van Winkle, and Willey. ' Those who voted in the negative are Messrs. Brovra, Chandler, Clark, Conness, Cragin, Creswell, Fessenden, Grimes, Harris, Howard, Howe, Kirkwood, Lane of Indiana, Nye, Pomeroy, Eamsey, Sherman, Sprague, Sumner, Wade, Williams, Wilson, and Yates. So the Senate refused to reconsider its vote on the passage of the resolution. [The debate is found on pages 1666-1679 of the Congressional Globe referred to in the head-note.] DAVID T. PATTEESON. 271 [Thirty-ninth Congress — First session.] DAVID T. PATTEESON, Senator from Tennessee from July 28, 1866, to March 3, 1869. July 26, 1866, the credentials of Mr. Patterson, elected to fill the unexpired portion of the term be- ginning March 4, 1863, were presented and referred to the Committee on the Judiciary, who were instructed to inquire into his qualifications. The following day the committee reported that the only question in relation^to his qualifications arose from the fact of his having held the office of circuit judge in the State'bf Tennessee after that State had passed an ordinance of secession ; tiiat his first term of said office having expired after the ordinance of secession was passed, he was in- duced by Union men to become a candidate for re-election, and was re-elected in May, 1862 ; that he was liimself a '" f:rm, avowed, and influential Union man ; " that he allowed himself to become a candidate for reflection " solely upon the motive that he could thereby afford some aid and pro- tection to the Union people : " that the constitution and judicial system of Tennessee remained the same after the secession of the State as before, and that no law was enforced by him as judge except such as were in force before the secession of the State. The committee recommend the adoption of a resolution that Mr. Patterson was duly qualified and entitled to hold (he seat. During debate on the adoption of the resolution reported by the committee, a joint resolution was introduced in the Senate that Mr. Patterson be admitted upon his taking so much of the oath prescribed by the act ot July 2, 1862, as is not included in the words, " that I haveneither sought, nor accepted, nor attempted to exercise the functions of any office whatever, under any authority or pretended authority in hos- tility to the United States.'* This joint resolution passed the Senate, but was laid on the table in the House the same day. Tlie Senate then passed the resolution reported by the committee, it hav- ing been amended so as to read, '^Resolved, That the Hon. David T.Patterson, upon taking the oaths required by the Constitution and laws, be admitted to a seat in the Senate of the United States." The history of the case here given consists of a transcript of the proceedings of the Senate relating to it from Senate Journals, 1st sess. 39th Cong., and the report of the committee, from Senate Re- ports, 1st sess. 39th Cong., volume 1, No. 139. Special references to the debates of each day are inserted below. * Thcesday, July 26, 1866. Mr. Fowler presented the credentials of the Hon. David T. Patterson, elected a Senator by the legislature of the State of Tennessee for the unexpired term of six years com- mencing on the 4th day of March, 1863. The credentials vrere read. On motion by Mr. Sumner that the credentials be referred to the Committee on the Judiciary with instructions to inquire into the qualifications of Mr. Patterson, After debate, it was determined in the affirmative — yeas 26, nays 14. On motion by Mr. Sumner, the yeas and nays being desired by one-fifth of the Sena- tors present, Those who voted in the affirmative are Messrs. Brown, Chandler, Conness, Creswell, Edmunds, Fe.?senden, Foster, Harris, Henderson, Howard, Howe, Kirkwood, Morgan, Morrill, Nye, Poland, Pomeroy, Eamsey, Ross, Sprague, Stewart, Sumner, Trumbull, Wade, Williams, and Wilson. Those who voted in the negative are Messrs. Buckalew, Cowan, Davis, Doolittle, Guth- rie, Hendricks, Johnson, Lane, McDougall, Nesmith, Norton, Sherman, Tan Winkle, and Wi'lley. So it was Ordered, That the credentials be referred to the Committee on the Judiciary with in- structions to inquire into the qualifications of Mr. Patterson. [The debate is found on pages 4162-4169 of the Congressional Globe referred to in the head-note.] Feiday, July 37, 1866. Mr. Poland, from the Committee on the Judiciary, to whom were referred the creden- tials of the Hon. David T. Patterson, elected a Senator by the legislature of the State of Tennessee with instructions to inquire into the qualifications of Mr. Patterson, submitted a report (No. 139) accompanied by the following resolution: "■ Resolved That the Hon. David T. Patterson is duly qualified and entitled to hold a seat in the Senate of the United States from the State of Tennessee." The Senate proceeded to,consider the said resolution; and, On motion by Mr. Clark to amend the resolution by striking out all after the word "re.«olved," and inserting in lieu thereof the following: "That the Hon. David T. Patterson, upon taking the oaths required by the Constitu- tion and laws, be admitted to a seat in the Senate of the United States," It was determined in the affirmative; and, After debate, 272 SENATE ELECTION CASES. Ordered, That the further consideration of the resolution he postponed to to-morrow. Ordered, That the report he printed. [The debate is found on pages 4213-4216 of the Congressional Globe referred to in the head-note. ] ******* Mr. Trumbull asked, and by unanimous consent obtained, leave to bring in a joint resolution (S. 144) in relation to the admission of the Hon. David T. Patterson to a seat in the Senate; which was read the first and second times by unanimous consent, and con- sidered as in Committee of the Whole; and no amendment being made, it was reported to the Senate. Ordered, That the resolution be engrossed and read a third time. The said resolution was read the third time, by unanimous consent. On the question, Shall the resolution pass? it was determined in theafarmative — yeas 35, nays 2. On motion by Mr. Wade, the yeas and nays being desired by one-fifth of the Senators present, .Those who voted in the affirmative are Messrs. Anthony, Buckalew, Clark, Conness, Cowan, Creswell, Davis, Doolittle, Edmunds, Foster, Fowler, Guthrie, Harris, Hender- son, Hendricks, Howe, Johnson, Kirkwood, Lane, Morgan, -Nesmith, Norton, Nye, Poland, Pomeroy, Eamsey, Eiddle, Sherman, Stewart, Trumbull, Van Winkle, Willey, Williams, Wilson, and Yates. Those who voted in the negative are Messrs. Chandler and Wade. So it was Resolved, Thatiho resolution pass, and that the title thereof be as aforesaid. [This joint resolution was laid on the table in the House.] [The debate and joint resolution are found on page 4219 of the Congressional Globe referred to in the head-note.] ******* On motion by Mr. Poland, the Senate resumed the consideration of the resolution reported by the Committee on the Judiciary for the admission of the Hon. David T. Patterson to a seat in the Senate from the State of Tennessee; and, On the question to agree to the resolution as amended, on the motion of Mr. Clark, After debate, it was determined in the affirmative — yeas 21, nays 11. On motion by Mr. Sumner, the yeas and nays being desired by one-fifth of the Senators present, . Those who voted in the affirmative are Messrs. Buckalew, Cowan, Davis, Doolittle, Edmunds, Fessenden, Foster, Guthrie, Harris, Henderson, Howe, Johnson, Kirkwood, Lane, Norton, Poland, Eiddle, Sherman, Van Winkle, Willey, and Williams. Those who voted in the negative are Messrs. Chandler, Creswell, Howard, Nye, Pomeroy, Eamsey, Eoss, Sumner, Trumbull, Wade, and Yates. , So it was Resolved, That the Hon. David T. Patterson, upon taking the oaths required by the Constitution and laws, be admitted to a seat in the Senate of the United States. [The debate is found on pages 4242-4245 of the Congressional Globe referred to in the head-note.] Saturday, July 28, 1866. The Hon. David T. Patterson, elected a Senator by the legislature of the State of Ten- nessee for the unexpired term ending March 3, 18S9, appeared, and the oaths prescribed by law being administered by the President pro tempore to Mr. Patterson, he took his seat in the Senate. EEPOBT OF COMMITTEE. [The committee consisted of Messrs. Trumbull (chairman), Harris, Clark, Johnson, Poland, f Stewart, and Hendricks.] In the Senate of the ITisriTED States. July 27, 1866.— Submitted. July 28, 1866.— Ordered to be printed. Mr. Poland submitted the following report: The Committee on the Judiciary, to whom were referred the credentials of Hon. David T. Patterson, Senator-elect from the State of Tennessee, with instructions to report whether said Patterson is legally qualified to hold the office of United States Senator DAVIB T. 'PATTERSON. 273 fiom said State, have had the same under consideiation, 4nd respectfully report as fol- lows: The only question in relation to theqnaliflcationsof Mr. Patterson, orhisright to hold his seat in the Senate, arises from the fact of his hqving held the office of circuit judge in the State of Tennessee after that State had passed an ordinance of secession and be- come a member of the confederacy. Circuit judges in Tennessee are elected by the people of the several circuits, and hold their of&ces for the term of eight years. .Judge Patterson was elected judge in one of the circuits in Eastern Tennessee in May, 1854, and his term of ofilce had not expired when the State passed the ordinance of seces- sion. The constitution of the State of Tennessee remained the same after the secession of the State as before, and there was no change made in the form of the State govern- ment, or in their judicial system. A large majority of the people of East Tennessee were ardently devoted to the Union and deemed it very important for their interest and that of the Union cause that the civil offices in that section of the State should be filled with Union men. .Judge Patterson was a firm, avowed, and influential Union man, and he was urgently pressed by the Union men of that circuit to run as a candidate for re-election as circuit judge, and he finally, though reluctantly, consented to do so. The opposing candidate was an avowed secessionist, and the issue in the election was between Union and seces- sion. The election was held in May, 1862, and Judge Patterson was elected over his rebel competitor by a large majority. At the same election most of the local offices in that section were filled by the election of ^Union men. At that time it was believed by the Union men of East Tennessee that they would soon be relieved from rebel mili- tary rule by the arrival of Union forces; and they desired also to retain the civil power in their own hands. In this expectation they were disappointed, and soon rebel bands were scattered through that region, and the Union people were subjected to great hard- ships and cruel oppression. When Judge Patterson was thus re-elected judge he did not suppose he would be commissioned by the governor of the State, who was a seces- sionist; but, after some considerable delay, a commission was sent to him with peremp- tory orders to take the oath. On the .receipt of his commission and order to take the oath. Judge Patterson delayed and hesitated, and consulted other leading Union men as to the proper course for him to take. They advised and urged him to take the oath; that he could thereby afford protection to some extent to Union men against acts of law- less violence on the part of the rebels, and that if he did not accept the office and take the oath the office would be filled by a rebel, and they would then be oppressed by the civil as well as the military power of the rebels. ' Judge Patterson yielded to their urgency and arguments, and went before a magistrate and took the oath which the Ten- nessee legislature had prescribed, which, in substance, was that he would, support the constitution of Tennessee and the constitution of the Confederate States. Judge Patter- son declared at the time to the magistrate that he owed no allegiance to the confederate government, and that he did not consider that part of the oath as binding him at all. At this time there were rebel troops in the neighborhood, and Judge Patterson had good reason to believe that his refusal to take the oath would subject him to arrest and im- prisonment, if not worse treatment; but we do not find that he was actuated at all by personal considerations, but acted solely upon the motive that he could thereby afibrd some aid and protection to the Union people, and also prevent the office from falling into hands that would use it to oppress them. East Tennessee at this time was in a very disturbed and distracted condition. The country was full of bands of armed rebels, and lawless violence held sway. Business was nearly suspended, and no civil business was done in the courts. Judge Patterson held a few terms of court in counties where he could organize grand juries of Union men, and in this way did soinething toward preserving peace and order in the com- munity. No other business was done by him asjudge after his election in 1862. During all this time Judge Patterson was an open, avowed, and devoted adherent to the Union. He was in constant communication with the officers of the Federal troops nearest that vicinity, and obtained and furnished to them information as to the move- ments of the rebels. He aided in concealing Union men, and in facilitating their escape to the Union lines, when they generally entered the Union service. He aided the Union people and the Union cause in every way open to him, and too numerous for detail. By these means he became amenable to the hostility of the secessionists, and was subjected to great difficulty and danger. He was several times arrested and held for some time in custody. At times he was obliged to conceal himself for safety, and spent nights in out- buildings and in the woods to avoid their vengeance. In September, 1863, the Federal troops reached Knoxville, and Judge Patterson suc- ceeded in escaping with his family to that place, and did not return to his home until after the close of the rebellion. S E 0^ —18 274 SENATE ELECTION CASES. As before stated, the constitution and election laws and judicial system of Tennessee remained the same alter the secession of the State as before, and Judge Patterson wa^ elected judge the last time under the same State constitution and laws as existed at his first election, and no laws were enforced by him as judge except such as were in force before the secession of the State. The committee are all satisfied that during the entire rebellion. Judge Patterson was an earnest, firm, and devoted Union man, and sufiered severely in support of his princi- ples. In accepting the ofiBce of judge, and taking the official oath, he did not intendany hostility to the authority or Government of the United States, nor did he intend to ac- knowlege any allegiance to, or any friendship for, the confederate government, but acted throughout with a sincere desire to benefit and preserve the Union and the Governm.ent of the United States. He always denied the authority of the confederate government over him, and feels an entire willingness and ability to take the oath required upon his admission to a seat in the Senate. The committee recommend the following resolution: Besolved, That the Hon. David T. Patterson is duly qualified and entitled to hold a seat in the Senate of the United States as a Senator from the State of Tennessee. PHILIP P. THOMAS. 275 [Fortieth CoDgress — ^First and second sessions.] PHILIP F. THOMAS, of Maryland. March 18, 1867, the credentials of Mr. Thomas, electeij for the term beginning March 4, 1867, were presented. The following day the credentials were referred to the Committee on the Judiciary, who were authorized by a resolution of March 20 to send for persons and papers. December 18, the committee submitted the evidence taken, and reported that they found nothing sufficient to debar Mr. Thomas from his seat unless it be found in the fact of his spn having entered tiic service of the confederacy, and in the circumstances connected therewith, in regard to which point the com- mittee express no opinion. A resolution was then submitted that Mr. Tliqmas be admitted to the seat. February 20,1868, the Senate resolved that Mr. Thomas ''having voluntarily given aid, coun- tenance, and eneouragement^ to persons engaged in armed hostility to the United States" was riot entitled to take the oath of office or hold the'seat. Some Senators maintained that in a case oi doubt, where there is absence of evidence showing conclusively that a person had thus voluntarily given aid, &c., the person should be admitted if willing,to take the oath of office. Extracts from speeches given below show the conduct of Mr. Thomas which was claimed to be "voluntarily giving aid," &c. The history of the case here given consists of a transcript of the proceedings of the Senate relat- ing to it &om Senate Journals, 40th Cong. ; the report of the committee from Senate Reports, 40th Cong., 2d sess., No. 5, with the exception of the evidence and documents printed with it ; and ex- tracts from speeches from Congressional Globe, 2d sess. 40th Cong., part 1, page 679, and part 2, page 1145. Special references to the debates of each day are inserted below. Monday, March 18, 1867. Mr. Johnson presented the credentials of the Hon. Philip P. Thomas, elected a Sen- ator hy the legislature of the State of Maryland for the term of six: years commencing on the 4th day of March, 1867; which were read. On motion by Mr. Howard that the credentials be referred to the Committee on the Judiciary, After debate, On motion by Mr. Grimes, Ordered, That the further consideration of the motion be postponed to to-morrow. [The debate i&., found on pages 171-180 of the Congressional Globe, 1st sess. 40th Cong.] Tuesday, March 19, 1867. The Senate resumed the consideration of the motion of Mr. Howard of yesterday, to refer the credentials of the Hon.- PhUip Francis Thomas, elected a Senator by the legis- lature of the State of Maryland, for the term commencing on the 4th day of March, 1867, to the Committee on the Judiciary; and the motion was agreed to. Wednesday*, March 20, 1867. Mr. Howard submitted the following resolution; which was considered by unanimous consent, and agreed to: "Sesolved, That the Committee on the Judiciary, to whom have been referred the credentials of Hon. P. F. Thomas, lately chosen a Senator of the United States by the legislature of Maryland, be authorized to send for persons and papers for the purposes of said reference." Wednesday, March 27, 1867. Mr. Howard presented a letter frq^ the president of the National Bank of Commerce of New York, addressed to him, acctfilapanied by the annual statement to the sharehold- ers of the Bank of Commerce, in New York, May 12, 1862; which was referred to the Committee on the Judiciary. [A statement by Mr. Howard is found on page 372 of the Congressional Globe, 1st sess. 40th Cong.] Tuesday, April 2, 1867. Mr. Johnson presented a letter addressed to him by the Hon. Philip F. Thomas, Sen- ator-elect from the State of Maryland, relating to a report of the Bank of Commerce to their shareholders, dated March 12, 1862, and presented to the Senate on the 27th of March last by the Hon. Mr. Howard; which, with the accompanying papers, was re- ferred to the Committee on the Judiciary. [The debate is found on pages 821-824 of the Congressional Globe, 1st sess. 40th Cong.] 276 SENATE ELECTION CASES. Wbdnesday, December 18, 1867, Mr. Johnson, from the Committee on the Judiciary, towhom were referred on the 20th of March last the credentials of Philip F. Thomas, Senator-elect ftom the State of Mary- land, beg leave to report: That they have taken the evidence submitted herewith, and that they find nothing sufficient, in the opinion-Of the committee, to debar said Thomas from'taking his seat, unless it be found in the fact of the son of said Thomas having entered the military service of the confederacy, and in .the circumstances connected with that fact or relating to it, and without the expression of an opinion in regard to this point, they re- port the whole evidence to the Senate. [The committee consisted of Messrs. Trumbull, Stewart, FrelinghnyseUj Edmunds, Conkling, Johnson, and Hendricks.] On motion by Mr. Johnson, Ordered, That the report and accompaaiying evidence be printed. Mr. Johnson submitted the following resolution for consideration: ' 'Besolved, That the Hon. Philip F. Thomas, Senator-elect from Maryland, be admitted to his seat on his taking the oaths prescribed bylihe Constitution and laws of the United States." Ordered, That it lie on the table, and be printed. Monday, January 6, 1868. On motion by Mr. Johnson, the Senate proceeded to consider the resolntifin submitted by him on the 18th of December, to admit Philip F. Thomas, a Senator-elect ftom the State of Maryland, to his seat in the Senate; and, After debate. Ordered, That the further consideration of the resolution be postponed to to-mor- row. [The debate is found on pages 320-330 of the Congressional Globe, part 1, 2d seas. 40th Cong.] Monday, January 20, 1868. The Senate resumed the consideration of the resolution submitted by Mr. Johnson on the 18th of December, to admit Philip F. Thomas, Senator-elect from the State of Mary- land, to his seat in the Senate; and. After debate, and the consideration of executive business, the Senate adjourned. [The debate is found on pages 632-685 of the Congressional Globe, part 1, 2d sess. 40th Cong.] Tuesday, January 21, 1868. ■The Senate resumed, &c. [The debate is found on pages 653-662 of the Congressional Globe, part 1, 2d sess. 40th Cong.] "Wednesday, January 22, 1868. The Senate resumed, &c. [The debate is found on pages 678-686 of the Congressional Globe, part 1, 2d seas. 40th Cong.] "Wednesday, Februarg 12, 1868. The Senate resumed, &c. i Thuesday, February 13, 1868. The Senate resumed the consideration of the resolution submitted by Mr. Johnson on the 18th December last, to admit Philip F. Thjmias, Senator-elect from the State of Maryland,, to his seat in the Senate. On motion by Mr. Sumner to amend the resolution by striking out aU after the word ' ' resolved, ' ' and inserting in lieu thereof the following: " That Philip F. Thom.as, Senator-elect from Maryland, cannot be admitted to take the oath of office required by the Constitution and laws, inasmuch as he allowed his minor son to leave the paternal house to serve as a rebel soldier, and gave him at the time $100 in money, all of which was 'aid,' 'countenance,' or 'encouragement' to the rebellion, which he was forbidden to give; and further, inasmuch as in forbearing to disclose and make known the treason of his son to the President, or other proper authorities; according to the requirement of the statute in such cases, he was guilty of misprision of treason as defined by existing law," After debate, ttie Senate adjourned. , [The debate is found on pages 1144-1156 of the Congressional Globe, part 2, 2d sess. 40th Cong.] PHILIP F. THOMAS. 277 Feiday, February 14, 1868. The Senate resumed, &c. [The debate is found on pages 1165-1177 of the Congressional Globe, part 2, 2d sess. 40th Cong.] Monday, February 17, 1868. The Senate resumed, &c. [The debate is found on pages 1205-1210 of the Congressional Globe, part 2, 2d sess. 40th Cong.] Tuesday, February 18, 1868. The Senate resumed, &c. [The debate is found on pages 1232-1243 of the Congressional Globe, 2d sess. 40th Cong.] "Wednesday, February 19, 1868. The Senate resumed the consideration of the resolution submitted by Mr. Johnson, on the 18th of December last,- to admit Philip F. Thomas, Senator-elect from the State of Maryland, to iis seat in the Senate; and the question being on the amendment proposed by Mr. Sumner to the resolution, After debate, Mr.. Sumner withdrew his amendment to the said resolution. On motion by Mr. Conkliug to amend the resolution by striking out all after the word " resolved," and inserting in lieu thereof : "That, in the judgment of the Senate, Philip F. Thomas, Senator-elect from Mary- land, cannot with truth take the oath prescribed by the act of Congress approved July 2, 1862, and that therefore he be not allowed to take said oath," ' After further debate, ' Mr. Conkling withdrew his amendment to the said resolution; and The question then recurred on agreeing to the resolution submitted hy Mr. Johnson; and After further debate, it was determined in the negative — yeas 21, nays 28. On motion by Mr. Drake, the yeas and nays being desired by one-flfth of the Senators present, Those who voted in the afSrmative are Messrs. Anthony, Bayard, Buckalew, Cole, Davis, Dixon, Doolittle, Fessenden, Frelinghuysen, Grimes, Hendricks, Johnson, Nor- ton, Patterson of Tennessee, Ross, Saulsbnry, Tipton, Trumbull, Van Winkle, WiUey, and Williams. , Those who voted in the negative are Messrs. Cameron, Cattell^ Chandler, Conkling, Conness, Corbett, Cragin, Drake, Ferry, Fowler, Harlan, Henderson, Howard, Morgan, Morrill of Maine, Morrill of Vermont, Morton, Patterson of New Hampshire, Pomeroy, Eamsey, Sherman, Sprague, Stewart, Sumner, Thayer, Wade, Wilson, and Yates. So the resolution was not agreed to; and Thereupon ' Mr. -Drake submitted the following resolution for consideration: "Besolved, That Philip F. Thomas, having voluntarily given aid, countenance, and encouragement to persons engaged in armed hostility to the United States, is not entitled to take the oath of oflce as a Senator of the United States from the State of Maryland, or to hold a seat in this body as such Senator; and that the President ^o tempore of the Senate inform the governor of the State of Maryland of the action of the Senate in the premises." The Senate proceeded to consider the said resolution; and On the question to agree thereto, it was determined in the affirmative — ^yeas 27, nays 20. On motion by Mr. Drake, the yeas and nays being desired by one-fifth of the Senators present. Those who voted in the affirmative are Messrs. Cameron, Cattell, Chandler, Conkling, Conness, Corbett, Drake, Ferry, Fowler, Harlan, Henderson, Howard, Morgan, Morrill of Maine, Morrill of Vermont, Morton, Patterson of New Hampshire, Pomeroy, Eamsey, Sherman, Sprague, Stewart, Sumner, Thg,yer, Wade, Wilson, ^nd Yates. Those who voted in the negative are Messrs. Anthony, Bayard, Buckalew, Cole, Davis, Dixon, Doolittle, Fessenden, Frelinghuysen, Hendricks, Johnson, Norton, Patterson of Tennessee, Eoss, Saulsbury, Tipton, Trumbull, Van Winkle, Willey, and Williams. So it was • Besolved, That Philip F. Thomas, having voluntarily given aid, countenance, and encouragement to persons engaged in armed hostility to the United States, is not entitled to take the oath of office as a Senator of the United States from the State of Maryland, or to hold a seat in this body as such Senator; and that the President p-o tempore of the 278 SEI^ATE ELECTION CASES. Senate inforin the governor of the State of Maryland of the action of the Senate in the premises. [The debate is found on pages 1260-1371 of the Congressional Globe, part 2, 2d sess. 40th Cong.] [Extract from remarks of Mr. Doolittle, of Wisconsin, in support of the right of Mr. Thomas, deliv- ered in the Senate January 22, 1868, and found on page 679 of the Congressional Globe, part 1, 2d sess, 40th Cong.] " Now, Mr. President, the two facts which are relied upon by those who oppose the admission of Mr. Thomas are these: First, that he resigned his ofiSce in the Cabinet of Mr. Buchanan; and second, that when his son left him to join the rebellion, he gave his son $100 in money. I maintain that both of those facts are susceptible of a double con- struction. I admit you may give a construction to either of them which would tend to show his guilt, that he sympathized with or countenanced the rebellion; but I maintain, on the -other hand, that both of those facts are entirely consistent with his innocence. Take the first fact, the fact of his resignation. It is said that he resigned his position in the Cabinet of Mr. Buchanan because he did not believe with Mr. Buchanan that he had a right to maintain a military force in the harbor of Charleston. That is what is aUeged. Suppose that to be true; does that show that Mr. Thomas was in favor of the rebellion? It shows that Mr. Thomas had a wrong opinion as to the power of this Government. It shows that Mr. Thomas was of opinion that the Government either had not the power or that it would be against good policy for the Government to exert the power by force to hold the harbor of Charleston. "Do we not,kuow it to be a fact that hundreds and thousands of men from their edu- catitf^ were led to believe and did believe that the Government of the United States had not the power by force of arms to hold a State in the Union ? • The ^reat mass, I may §ay,' of the Southern people were educated in that belief. I have no doubt that a great many persons in the State of Maryland were educated in that belief, and had been for a whole generation. The right of a State to separate from the Union was a doctrine which had been inculcated in all the States of the South, in the universities of the South, in the pulpits of the South, in the press of the South. I may say that a whole generation had been reared under the trainings and teachings of that very doctrine, that a State had a right to withdraw itself from the Union, and that the allegiance which the citizen owed in aiiy State was an allegiance to the State first, and to the Union afterward. I agree that this is a most fatal heresy, a heresy which led to this rebellion, and which * bathed the whole land in blood, costing the South two hundred thousand or three hun- dred thousand of the lives of their ablest and strongest and best, and costing us half a million more. But, sir, it was an opinion entertained by many, and even if Mr. Thomas entertained that opinion I maintain that the holding of that opinion was not of itself treasonable. It did not make him guilty in any respect of the crime of treason, unless he gave his countenance and support to the rebellion. What does he say in this letter of resignation? He says that he is not able to con- cur in the views entertained by President Buchanan ' touching the authority, under existing laws, to enforce the collection of the customs at the port of Charleston. ' He states to Mr. Buchanan that he does not agree with him in opinion, and for that reason he proposes to withdraw from the Cabinet. Is there in that fact anything which goes to show that Mr. Thomas was in favor of the rebellion ? No, sir. It may show that Mr. Thomas did not believe that we had the power by force of arms then to enforce the col- lection of the revenues in the harbor of Charleston, You remember that as long ago as 1833 a question arose about enforcing the revenue laws in the harbor of Charleston, and the celebrated force bill was brought forward and passed in 1832 or 1833, 1 believe. But that law was not standing upon the statute-book in 1860. That law was only temporary, and Mr. Thomas may have been of the opinion that it required new legislation on the part of Congress before you could resort to force to collect the duties in the harbor of Charleston; and because he disagreed with Mr. Buchanan, rather than embarrass him he tendered his resignation and retired from the Cabinet. I insist that this act of Mr. Thomas is susceptible of a construction in accordance with his entire innocence of any connection with the rebellion. ' ' Then, as to the other fact — 'the fact that he gave to his son on the morning when he left home $100 in money — I agree that if he gave that money to his son with a view to aid him on his way to the rebellion it would be susceptible of a construction which would make Tiim guilty of aiding the rebellion. But, sir, what are the facts stated ? His son states that he had made his arrangements to go, that he had determined to go, that he informed his father that he was then ready to go, and would go. The father told him the ground, and the only ground, upon which he gave him this money. It was not to aid him to go to the rebellion, but Uiat in case he was imprisoned or in suffering he juight have a sum of money with him. It was the prompting of his paternal heart, PHILIP f. 'THOMAS, 279 ifhile -with tears iil tis eyes lie was protesting against his son going. I submit that this is susceptible of two constructions; and if it be susceptible of two constructions, one of which is consistent with his innocence, we are boundj in the ordinary charity which administers justice among men, to give to it the innocent rather than the guilty con- struction. "Mr. President, we may establish here a precedent of the most dangerous character. When the person elected, against whose veracity I believe no one has ever raised a ques- tion, whose private character as an individual stands above reproach, comes here and is ready in the presence of this Senate and of Almighty God to put his hands upon the Gros- pels and take the oath that he never did countenance or aid the rebellion in any way whatever, I say, in the absence of any evidence which goes to show conclusively, against any reasonable doubt, that he is guilty, we are bound to receive him. We tender this oath to him; we make him the witness in the case. In equitable proceedings, if a party chooses to make the other party his witness, he is bound by his testimony. And I say if we choose to put this oath to the applicant and call hi5a here to swear whether he is loyal to the Government of the United States or not, and if he is willing to do it, know- ing him as we do; his character as it stands before us being above reproach as an indi- vidual, what right have we not to believe the statement which he makes if the facts which appear are susceptible of a construction in accordance with innocence rather than with guilt?'" [Extract from remarks of Mr. Sumner, of Massachusetts, against the right of Mr. Thomas, delivered in the Senate February 13, 1868, and found in the Congressional Grlobe, part 2, 2d sess. 40th Cong., page 1145.] ' ' A great debate on the question how Joyalty shall be secured in the reberetates is for the time silenced in order to consider how loyalty shall be secured in this Chamber. Everywhere in the rebel States disloyal persons are struggling for power; and now at the door of the Senate we witness a similar struggle. If disloyalty cannot be shut out of this Chamber, how can we hope to overcome it elsewhere ? ' ' More than once at other times I have discussed the question of loyalty in the Senate. But this was anterior to the adoption of the fourteenth constitutional amendment. The case is plainer now than then, inasmuch as there is now an explicit text requiring loyalty asa 'qualification.' Formerly we were left to something in the nature of inference; now ihe requirement is plain as'langnage can make it. By the new' amendment it is provided that ' no person shall be a Senator or Representative in Congress who, having previously "aken an oath as a member of Congress, or as an officer of the United States, to support the Constitution of the United States, shall have engaged in insurrection or rebellion ' against the same, or given aid or comfort to the enemies thereof.' ' ' These words are precisely applicable to the present case. They lay down a rule from which there is no appeal; and this rule is not merely in the statutes, but in the Constitu- tion. It is the plain declaration that loyalty is a requirement in a Senator and Eepre- sentative. If we do not apply it to ourselves now it is difficult to see with what consistency we can apply it to others. Your course here will affect the meaning of this constitutional amendment, if not its validity for the future. " I do not stop to argue the question, if that amendment is now a part of the Consti- tution; for I would not unnecessarily occupy your time, nor direct attention from the case which you are to decide. For the present I content myself with two remarks: first, the amendment has already been adopted by three-fourths of the States that took part in proposing it, and this is enough, for the spirit of the Constitution is thus satisfied; and, secondly, it has already been adopted by 'the legislatures of three-fourths of the several States ' which have legislatures, thtis complying with the letter of the Constitution. Therefore by the spirit of the Constitution, and also by its letter, this amendment is now a part of the Constitution, binding on all of us. As such I invoke its application to this cdse. In face of this positive peremptory requirement it is impossible to see how loyalty can be other than a ' qualification. ' In denjdng it you practically set aside this amend- ment. ' ' But even without this amendment, I cannot doubt that the original text is sufficiently clear and explicit. It is nowhere said in the Constitution that certain specified require- ments and none others shall be ' qualifications ' of Senators. The word qualifications, ' which plays such a part in this case, occurs in another connection, where it is provided that 'each House shall be the judge of the elections, returns," and gMaii^caJions of its own members. ' What these ' qualifications ' may be is to be found elsewhere. Searching the Constitution from beginning to end we find three ' qualifications, ' which come under the head of form, being (1) age, f2) citizenship, and (3) inhabitancy in the State. But be- hind and above these is another 'qualification,' which is of substance, in contradiction to fwm only. So supreme is this that it is placed under the safeguard of an oath. This is Joyalty. It is easy to see how infinitely more important is this than either of the others — • 280 SENATE ELECTION CASES. than age, than citizenship, or than inhabitancy in the State. A Senator failing in either of these would be incompetent by the letter of the Constitution ; but the Republic might not suffer from his presence. On the other hand, a Senator failing in loyalty is a public enemy, whose presence in this council Chamber would be a certain peril to theEepublic. " It is vain to say that loyalty is not declared to be a ' qualification. ' I deny it. Loy- alty is made a 'qualification ' in the amendment to the Constitution; and then again in the original text, when in the most .solemn way possible it is distinguished and guarded by an oath. Men are familiarly said to ' qualify ' when they take the oath of office, and thus the language of common life furnishes an authentic interpretation to the Constitu- tion. " But no man can be allowed to take the oath as Senator when, on the evidence before the Senate, he is not competent. If it appear that he is not of sufficient age, or of the required citizenship or inhabitancy, he cannot be allowed to go to that desk. Especially if it appear that he fails in the all-important ' qualification ' of loyalty, he cannot be allowed t» go to that desk. A false oath, taken with our knowledge, would compromise the Senate. We who consent will become parties to the falsehood. "We shall be parties in the offense. It is futUe to say that the oath is one of purgation only, and that it is , for hini who takes it to determine on his conscience if he can take it. The Senate cannot forget the evidence; nor can its responsibility in the case be swallowed up in any process of individual purgation. On the evidence We must act and judge accordingly. The ' open sesame ' of this Chamber must be something more than the oath of a suspected applicant. "According to Lord Coke, 'an infidel cannot be sworn ' as a witness. This was an early rule which has since been softened in our courts. But under the Constitution of the United States and existing statutes a 'political infidel cannot he sworn' as a Senator. Whatever may be his inclination or motive he must not be allowed to approach your desk. The country has a right to expect that all who enter here shall have a sure and well-founded loyalty, above all question or 'suspicion.' And such I insist is the rule of the Constitution and of Congress. "As if to place the question beyond alldofibt, Congress by positive enactment requires that every Senator, before admission to his seat, shall swear that he has 'voluntarily given no aid, countenance, counsel, or encouragement to persons engaged in armed hos- tility ' to the United States. Here is little more than an interpretation of the Constitu- tion. The conclusion is plai n . No person who has voluntarily given even ' countenance ' or ' encouragement ' to another engaged in the rebellion can be allowed to take that oath. ' ' After this statement of the rule, the question arises, if Philip F. Thomas can be per- mitted to take the oath at your desk, or, in other words, to ' qualify ' as a Senator of the United States. Is he competent? This is a question of evidence. "The ample discussion of the facts in this case, and their singular plainness, super- sede the necessity of all details. The atmosphere about Mr. Thomas and his acts are harmonious. From the beginning we find him enveloped in coldness and indifference while his country was in peril. But, observing him more closely, we are shocked by two acts of positive disloyalty, one of which is the natural prelude'of the other. The first muttering of the rebellion found him a member of the Cabinet of Mr. Buchanan; but when this uncertain President proposed the succor of our troops at Charleston, already menaced vrith war, Mr. Thomas withdrew from the patriotic service. He resigned his seat, following the lead of Cobb, Thompson, and Floyd. A man is knovm by the com- pany he keeps. His company at this time were traitors. And the act they united in doing was essentially disloyal. As the rebellion assumed the front of war they all aban- doned their posts — some to join the rebellion and mingle with its armies; Mr. Thomas more prudently to watch the course of events in Maryland, ready to lift his arm also if his State pronounced the word. This concerted desertion was in itself a conspiracy against the Government; and, in the case of Mr. Thomas, who was Secretary of the Treas- ury, it was a blow at the na,tional credit, which it was his special duty to guard. It was an act of disloyalty to be blasted by indignant history, even if your judgment fails now. And this was the first stage in this record. "Meanwhile the war rages. Armies afe marshaled. Battles ensue. Washington itself is beleaguered. The EepubUo trembles with peril. But Mr. Thomas continues in the seclusion of his home, enveloped in the same disloyal atmosphere, and refusing always the oath of allegiance. At last in 1863 an only son arrives at the age of eighteen. Though still a minor he is already of the military age. Naturally filled with the senti- ments of his father's fireside, he seeks to maintain them by military service. He is like his father, but with the ardor of youth instead of the caution of years. He avows his puj^ose to enlist in the rebel army, thus to levy war against his country and adhere to its enemies. AU this was treason — plain, palpable, unquestionable, downright treason. Instead of detaining his son; instead of keeping him back; instead of interposing a pa- teroal veto; instead of laying hands gently upon him; instead of denouncing him to the PHILH' F. THOMAS, 281 magistrate, all of which the father might have done, he deliberately lets him, go, and then, to cap the climax of criminal complicity, furnishes the means for his journey and his equipment. He gives $100. The father is not rich, and yet he gives this consider- able sum. Few soldiers started with such ample allowance. Thus it stands. The father, who has already deserted his post in the Cabinet and has refused to take the oath of aliegiajice to his country, contributes a soldier to the rebellion, and that soldier is his only son. To complete and assure the great contribution, he contributes a sum of money also. If all this accumulated disloyalty, beginning in a total renunciation of every pa- triotic duty, and finally consummated by an act of flagrant, unblushing enormity, is not 'aid and comfort' or 'countenance' or 'encouragement' totherebellion, it is difficult to say what can be. There must be new dictionaries for these familiar words, and they must receive a definition down to this day unknown. They must be treated as thread or gos- samer, when they should be links of iron. 282 SENATE ELECTION CASES. [Fortieth Congress — Second session.] JOHN T. JONES AND AUGUSTUS H. GARLAND "vs. ALEXAN- DER Mcdonald and benjamin p. rice, of Arkansas. Arkansas had been without representation in Congress from 1861. June 23, 1868. the credentials of Mr. McDonald and-Mr. Rice, elected April 15, 1868, to fill the unexpired terms ending March 3, 1871 and 1873, were presented. On the same dajr there' were presented from the files of the Henate creden- tials of Mr. Jones and Mr. Garland, purporting to be certificates of their elections for the same terms. The two latter credentials had been originally presented to the Senate and ordered to lie on the table in the years 1866 and 1867, soon after the respective elections. They were again ordered to lie on the table. It appears from the debate that the elections of Messrs. Jones and Garland took place when a provisional government existed in Arkansas. A motion "was then made that the cre- dentials of Messrs. McDonald and Rice be referred to the Committee on the Judiciary. The motion was determined in the negative, and Messrs. McDonald .and Rice took their seats. It appears from the debate on their credentials that some Senators were of opinion that the credentials should be referired to a committee for the reasons that- they did not in some particulars conform to the act of July 25, 1866, regulating the election of Senators, and that the election had taken ^ace before the passage of the act declaring Arkansas entitled to representation in Congress. The history of the case here given consistsof a transcript of the proceedings of the "Senate relating to it from the Senate Journal, 40th Cong., 2d sess. The debate is^ound on pages 3384-3389 of the Congressional Globe, part -4, 2d sess. 40th Cong. Tuesday, June 23, 1868. Mr. Thayer presented the credentials of Benjamin F. Eice, elected a Senator by the legislature of the State of Arkansas for the unexpired term commencing on the 4th day of March, 1867; which were read. Mr. Thayer presented the credentials of Alexander McDonald, elected a Senator by the legislature of the State of Arkansas for the unexpired term commencing on the ■ith day of March, 1865; which were read. Mr. Davis presented from the files of the Senate papers purporting to be the credentials of John T. Jones and Augustus H. Garland, chosen Senators by the legislature .of the State of Arkansas for the unexpired terms commencing on the 4.th day of March, 1865, and on the 4th day of March, 1867. Mr. Howard submitted a motion that the papers jwesented by Mr. Davis lie on the table. Mr. Hendricks asked to have the papers read; and Objection being made thereto, The President pro tempore- submitted the question to the Senate, to wit: Shall the papers be read? and it was determined in the affirmative — yeas 30, nays 16. On motion by Mr. Hendricks, the yeas and nays being desired by one-fifth of the Sen- ators present, Those who voted in the afiSrmative are Messrs. Bayard, Cole, Conkling, Corbett, Cragin, Davis, Dixon, Doolittle, Drake, Edmunds, Fessenden, Fowler, Harlan, Henderson, Hen- dricks, Johnson, McCreery, Morgan, Morrill of Vermont, Morton, Patterson of New Hamp- shire, Patterson of Tennessee, Uamsey, Eoss, Sherman, Sprague, Trumbull, Van Winkle, Willey, and Yates. Those vrho voted in the negative are Messrs. Cattell, Chandler, Conness, Ferry, Freling- huysen, Howard, Howe, Morrill of Maine, Nye, Pomeroy,'Stewart, Sumner, Thayer, Tip- ton, Wadej' and Wilson. So it was decided that the papers be read; and The Secretary having read the same, the question recurred on the motion of Mr. How- ard that the papers presented by Mr. Davis lie on the table; and On the question to agree thereto, it was determined in the affirmative. A motion was then submitted by Mr. Davis that the credentials of Benjamin F. Eice and the credentials of Alexander McDonald be referred to the Committee on the Judi- , ciary ; and . On the question to agree thereto, it was determined in the negative; and The oaths prescribed by law were administered to Mr. Eice and Mr. McDonald by the President ^0 tempore, and they took their seats in the Senate. MARVIN VS. OSBOEK. 283 [Fortieth Congress — Second session.] WILLIAM MARVIN vs. THOMAS W. OSBORN, of Florida. Florida had been without representation in Congress from 1861. June 30, 1868, the credentials of Mr. Osborn, elected to fill the unexpired term ending: March 3, 1873, were presented. They were signed by Harrison Reed, governor, and certified that iie had been elected June 18, 1868. A motion was made that the credentials be referred to the Committee on the Judiciary. It appears from the debate that by a resolution of the Florida legislature the thirteenth and fourteenth amendments had been " adopted." It "n'as maintained by some that this was not a sufficient " ratification "of the' amendments. Pending debate on the motion to refer Mr. Osborn's credentials, the credentials of Mr, Marvin, claiming to have been elected for the same term, were presented. They were signed by David S. Walker as governor, and certified that Mr. Marvin had l>een elected Novembei 28, 1866. The motion to refer Mr. Osborn's credentials to a committee was determined in the negative, and . Mr. Osborn was admitted to the seat. No further action was taken on Mr. Marvin'scredentials. It appears from the debate on them that Mr. Marvin had been elected before Congress had declared that Florida was entitled to representation in Congress, it havfng declared that Florida was not en- titled to appoint electors for President and Vice-President. The history of the case here given consists of a transcript of the proceedings of the Senate relating to it from the Senate Journal, 40th Cong., 2d sess. The debates are found on pages 359S-S607 of the Congressional Globe, part 4, 2d sess. 40tli Cong. ^ Tuesday, June 30, 1868. Mr. Howe presented a resolution of the legislature of the State of Florida ratifying the amendments to the Constitution of the United States known as Articles XIII and XIV; which was read. Mr. Howe presented the credentials of Thomas Ward Osborn, elected a Senator of the United States by the legislature of the State of Florida for the unexpired term com- mencing March 4, 1867 ; which were read. A motion was made by Mr. Drake that the resolution of ratification of the legislature of Florida and the credentials of Mr. Osborn be referred to the Committee on the Judi- ciary. After debate, Mr. Doolittle presented a paper purporting to be the credentials of William Marvin, elected a Senator of the United States by the legislature of the State of Florida on the 28th of November, 1866, for the term of six years commencing on the 4th day of March, 1867, and asked that the paper be read. Objection to the reading of the paper having been made by Mr. Howe, The President pro tempore submitted the question to the Senate, Shall the paper be read? and it was determined in the aflfirmative; and The said paper having been read, the question recurred on the motion of Mr. Drake to refer the resolution of the legislature of Florida and the credentials of Mr. Osborn to the Committee on the Judiciary. On the question to agree thereto, it was determined in the negative — ^yeas 16, nays 30. On motion by Mr. Conness, the yeas and nays being desired by one-fifth of the Sen- ators present, Those who voted in the afiarmative are Messrs. Anthony, Buckalew, Davis, Doolittle, Drake, Edmunds, Pessenden,. Hendricks, Howard, Johnson, McCreery, Morrill of Maine, Morrill of Vermont, Norton, Patterson of New Hampshire, and Vickers. Those who voted in the negative are Messrs. Cameron, Cattell, Chandler, Cole, Conness, Corbett, Cragin, Ferry, Frelihghuysen, Harlan, Howe, McDonald, Morgan, Morton, Nye, Pomeroy, Eamsey, Eoss, Sherman, Stewart, Sumner, Thayer, Tipton, Trumbull, Van Winkle, Wade, WiUey, Williams, Wilson, and Yates. So the motion of Mr. Drake was not agreed to. Mr. Howe submitted a motion that the oaths prescribed by law be now administered to Mr. Osborn. A motion was made by Mr. Drake that the credentials of Mr. Osborn lie on the table, and that the resolution of the legislature of Florida ratifying the amendments to the Constitution of- the United States be referred to the Committee on the Judiciary. . Mr. Conness raised the question of order, to wit, that the motion to administer the oaths of office to Mr. Osborn having been first made, and being in the nature of a priv- ileged question, had precedence over the motion of Mr. Drake. The President j»-o tempore sustained the question of order raised by Mr. Conness, and decided the motion of Mi. Drake not in order; and 284 SteNATE ELfiCl'lOlir CASES. On the question, Shall the oaths prescribed by law be now administered to Mr. Os- born? On motion by Mr. Drake that the farther consideration of said question be postponed to to-morrow, Jt was determined in the negative — yeas 13, nays 31. On motion by Mr. Conness, the yeas- and nays being desired by one-fifth of the Sen- ators present, ^ Tho.se who yoted in the affirmativeare Messrs. Anthony, Buckalew, Corbett, Davis, Doo- little, Drake, Edmunds, Pessenden, Hendricks, McCreery, Morrill of Vermont, Norton, and Vickers. Those who voted in the negative are Messrs. Cameron, Cattell, Chandler, Cole, Conk- ling, Conness, Cragin, Ferry, Frelinghuysen, Harlan, Howard, Howe, McDonald, Mor- gan, Morrill of Maine, Morton, Nye, Patterson of New Hampshire, Pomeroy, Eamsey, Koss, Stewart, Sumner, Thayer, Tipton, Trumbull, Wade, Willey, Williams, Wilson, and Yates. So the motion to postpone the further consideration of the question to administer the oaths to Mr. Osborn was not agreed to; and On the question. Shall the oaths prescribed by law be now administered to Mr. Os- born ? it was determined in the affirmative — ^yeas 33, nays 6. On motion by Mr. IJrake, the yeas and nays being desired by one-fifth of the Senators present. Those who voted in the affirmative are MessrS. Cameron, Cattell, Chandler, Cole, Conk- ling, Conness, Corbett, Cragin, Drake, Ferry, Frelinghuysen, Harlan, Howard, McDonald, Morgan, Morrill of Maine, Morrill of Vermont, Morton, Nye, Patterson of New Hamp- shire, Pomeroy, Eamsey, Eoss, Stewart, Sumner, Thayer, Tipton, Trumbull, Wade, Willey, Williams, Wilson, and Yates. U'hose who voted in the negative are Messrs. Buckalew, Davis, Doolittle, Johnson, McCreery, and Vickers. So the motion was agreed to; and The oaths prescribed by law were administered to Mr. Osborn by the President pro iempctre, and he took his seat in the Senate. HILL . AND MILLER, WHITELEY AND FARROW. 285 [Third session Fortieth Congress, and Forty-first Congress.] HILL AND MILLEE, and WHITELEY and EAEEOW, of Georgia, December?, 1868, the credentials of Joshua Hill, elected for the unexpired portion of the term be- ginninic March 4, 1867, were presented. December 10, his credentials were referred to the Committee on the Judiciary. January 11, 1869, the.credentials of H. V. M. Miller, elected for the unexpired por- tion of the tei'm beginning March 4, 18^, were presented and referred to the same committee. Jan- uary 25, 1869, the committee reported on the credentials of Mr. Hill. The chief question to be de- cided was whether Georgia had complied with the conditions of an act providing for her admission to representation. This act provided that "no person prohibited 'from holding office under the United States or any State by section 3 of the proposed amendment to the Constitution of the United States, known as article 14, shall be deemed eligible to any oflBce in said State unless re- lieved from disability as provided in said amendment." The committee reported that some of the members composing the legislature electing Mr. Hill were disqualilied under the above provision ; that the legislature had gone through witli the forms of an investigation which did "not appear to have been conducted in good faith," and had found none of the members disqualified; that " the election and qualification of members of the legislature, where the existence of any legisla- ture authorized to act as such ia not involved, cannot be inquired into by the Senate in determin- ing the right of a Senator to his seat; " but that " the question involved in this case is not whether persons not entitled to seats in the legislature were received by that body and allowed to vote upon the election of a Senator, but whether the body assuming to be the legislature violated the conditions upon which it was allowed to organize by permitting disloyal persons to participate in its proceedings." The committee submitted a resolution that Mr. Hill ought not now to be admitted" to take his seat. There was a minority report. February 17, 1869, the committee re- ported against admitting Mr. Miller to his seat. There was no written report. In Ihe next session of Congress the credentials of Messrs. Hill and Miller were again referred to the committee, who reported them back, and they were laid on the table. February 14,1870, in the next session, the credentials were again referred to the committee. A new election liaving beert held, the cre- dentials of Richard H. Whiteley, elected for the unexpired portion of the term beginning March 4, 1865, and the credentials , of Henry P. Fan'ow, elected for the unexpired portion of the term beginning March 4, 1867, were presented July 15,1870, and ordered to lie on the table. No reports were made during this session on the credentials; but an act was passed (approved I^ecember 22, 1869) to promote the reconstruction of Georgia; a report was majle March 2,1870 (No. 58), on the question whether the legislature had been reorganized in accordance with the provisions of this act ; and an act was passed (approved July 15, 1870) declaring that the State was entitled to repre- sentation in Congress. The proceedings of the Senate relating to these acts are not included in the proceedings given below. December 3, 1870, in the next session of Congress, the credentials of Messrs. Whiteley and Farrow were referred to the committee. January 23,1871, the committee ^reported on the credentials of the four claimants that Messrs. Hill and Miller, elected under the organization of 1868, were duly elected, but that Mr. Miller, having acted as a surgeon in the rebel army, could not take the oath required by the act of July 2, 1862. They recommended the adoption of the resolution that Mr. Hill was entitled to his seat. There was a minority report recommending the adoption of a resolution declaring Messrs, Whiteley and Farrow (who had been elected under the organization of 1870) entitled to seats. , February 1, 1871, the resolution reported by the com- mittee was agreed to and Mr. Hill took his seat in the Senate. February 24, 1871, a joint resolution prescribing an oath to be taken by Mr. Miller was approved, and Mr. Miller took his seat. The proceedings of the Senate relating to this joint resolution are i^ot included in theextr acts given below. The history of the case here given consists of a transcript of the proceedings of the Senate relat- ing to the case from Senate Journals, 3d sess, 40th Cong., and lsb,2d,aud3d sess.dlst Cong., with ex- tracts from the reports. Aportionof report No. 58, 2d sess. 41st Cong., referred to above,is included in the report made January 23, 1871, given below. Special references to the debates of each day are inserted below, and references to the reports are given in foot-notes. [Third sesson of the Fortieth Congress.] CREDENTIALS OF MR. HILL. Monday, December 7, 1868. Mr. Sherman presented the credentials of Joshua Hill, elected a Senator by the general assemhly of the State of Georgia for the unexpired portion of the term commencing on the 4th day of March, 1867; which were read. Mr. Drake moved that the said credentials be referred to the Committee on the Judi- ciary when said committee shall have been appointed. Pending debate, Mr. Wilson presented a memorial of the representatives of the colored voters of the State of G-eorgia, in convention assembled, in relation to the action of the legislature of that State in expelling twenty-nine colored members from the said legislature; which was read ; and, After further debate, On motion by Mr. Sherman, Ordered, That the credentials of Mr. Joshua Hill lie on the table. [The debate is found on pages 1-5 of Congressional Globe, part 1, 3d sess, 40b Cong.] 286 SENATE ELECTION CASES. Thtjbsday, December 10, 1868. On motion by Mr. Sherman, Ordered, That the credentials of Joshua Hill, a Senator-elect from the State of Georgia, together with the letter of the governor of the State of Georgia in relation to the execu- tion of the laws known as the reconstruction laws, and the memorial of the representa- tives of the colored voters of fereorgia in convention assembled, in relation to the expul- sion of certain members from the legislature of that State, be referred to the Comniittee on the Judiciary. Monday, Joreaarjf. 25, 1869. Mr. Stewart, from the Committee on the Judiciary, to whom were referred the creden- tials of Joshua Hill, elected a Senator by the legislature of Georgia for the unexpired portion of the term commencing on the 4th day of March, 1867, submitted a report (No. 19a), accompanied by the following resolution: '' Resolved, That Joshua, Hill, claiming to be Senator-elect from Georgia, ought not iiow to be permitted to take a seat in this body." Mr. Trumbull asked and obtained leave of the Senate to present the views of the mi-- nority of the Committee on the Judiciary in relation to the right of Joshua Hill, Sen- ator-elect from the State of Georgia, to a seat in the Senate; which were ordered to be printed with the report of the committee submitted by Mr. Stewart. EEPOKT OF COMMITTEE ON CREDENTIALS OF ME. HILL — MAJOBITY AND MINOEITY.* [The committee consisted of Messrs. Trumbull (chairman), Stewart, Frdinghuysen, Edmunds, Conkling, Rice, Carpenter, and Hendricks.] In THE Senate of the United States. January 25, 1869. — Ordered to be printed. Mr. Stewart, from the Committee on the Judiciary, submitted the following report: The Committee on the Judiciary, to whom were referred the credentials of Joshua Hill, claiming to be Senator-elect from Georgia, beg leave to submit the following report: The credentials referred to your committee are in the usual form, and if the State of Georgia is entitled to representation in Congress, Mr. Hill ought to be permitted to take his seat. From the fact of the reference, your committee feel called upon to go behind the cre- dentials to ascertain if any reasons exist why Mr. Hill should not be admitted to the Senate. , On the 21st of May, 1868, the President transmitted to Congress a proposed constitu- tion for the State of Georgia which had been framed Ijy a convention assembled under the reconstruction acts of Congress and ratified by the people. On the 25th June, fol- lowing, Congress passed an act which, among other things, provided for the admission of Georgia to representation upon compliance with certain conditions therein named, the most important of which was that the legislature of Georgia should duly ratify the amend- ment to the Constitution of the United States known as the fourteenth amendment. The act further provides that after compliande with the required conditions ' ' the officers of said State duly elected and qualified under the constitution hereof shall be inaugurated with- out delay; but no person prohibited from holding office under the United States or any State by, section 3 of the proposed amendment to the Constitution of the United States known as article 14 shall be deemed eligible to any office in said State unless relieved J'rom disability as provided in said amendment. " ■ The obvious design of this provision was to prevent the new organization from falling under the control of enemies of the United States, so as to defeat the reconstruction ol the State. The right of Mr. Hill (if regularly elected) to a seat in the Senate depends lipon threa important considerations: First. Did the legislature of Georgia, regularly organized in accordance with the Con- stitution of the United States, the laws of Congress, and the constitution of Georgia,' dsij ratify the fourteenth amendment, and comply with the various conditions imposed by the act of June 25, 1868? Second. Have the legislature and people of Georgia, subsequent to such compliance with said acts of Congress, committed such acts of usurpation and outrage as to place the State in a condition unfit to be represented in Congress? Third. Whether, on the whole case, taking the action of Georgia both before and since the pretended ratification of the fourteenth amendment, a civil government has been established in that State which Congress ought to recognise? These questions must be answered by the law and the facts. * Taken from Senate Reports, 3d sees. 40th Cong., No. 192. Tb? aocompanying documents, making pages 5-31 and 38-40 of the report, are omitted • ' f^ HILL AND MILLEE, WHITELEY AND FAREOW. 287 The district commander, General Meade, by a general order dated June 25, 1868, de- clared the result of the election; Eufus B. Bullock being elected governor, and among the members elected to the legislature in that order were thirty-one colored men— three senators and twenty-eight representatives. (See Exhibit No. 1.) By a proclamation of the governor-elect, in pursuance of the act of June 25", 1868, the legislature of Georgia - convened on the 4th July following. On the 8th July the organization of the two houses was effected, and all persons declared elected were allowed to take their seats. When the governor-elect was notified of the action of the two houses, he addsessed a communication to General Meade, commander of the district, informing him of the fact, and also that it was alleged that a number of the members of the general assembly who had taken their seats, and one or more officers of that body, were not eligible under the act of June 25, 1868, by reason of their having taken an official oath to support the Con- stitution of the United States, and subsequently had given aid and comfort to the ene- mies thereof. . General Mead* on the same day replied to the communication, and among other things desired the governor-elect to communicate to the legislature that he could not recognize any act of that body as valid or allow the same to be executed until satisfactory evidence was produced that all persons excluded by the fourteenth amendment were deprived of their seajs in both houses. Whereupon the two houses went through the form of an investigation. But from the evidence before your committee the investiga- tion does not appear to have been conducted in good faith, or with any intention either of finding the facts or of excluding persons laiown to be disquaUfled. A committee was appointed in each howse. In the senate the majority of the committee found all the members qualified; but there was a minority report which gave an abstract of the evi- dence and found four senators disqualified. The evidence consisted of the admissions of the senators themselves; which if true, they should have been excluded. Yet the senate passed a resolution, under the operation of the previous question, admitting them all. These facts appear in the official correspondence between Governor Bullock and General Meade in regard to the organization of the Georgia legislature. (See Exhibit A. ) There were three reports in the house. The majority report found two members disqualified; one of the minority reports found still another mepiber disqualified, but the other mi- nority report found that all were qualified. The last report was adopted by the house under the operation of the previous question. To illustrate the manner in which the investigation was conducted, a copy of the proceedings of the legislature on the 16th, 17th, and 18th days of July, 1868, as reported in the Atlanta Daily Era, and forwarded to the State Department, is attached to this report. (See Exhibits A, B, and C. ) It is alleged that an impartial investigation would have shown from thirty to forty members of the legislature disqualified under the fourteenth amendment; and although your committee have not been able to fully investigate this matter, but, from the evidence before them, they have little doubt that the number was large, as the exhibit hereto attached will tend to establish. For the purposes of this report, however, your committee did not deem it necessary to ascertain the number of disqualified persons admitted. But the fact that any were knowingly admitted was not only a violation of the fourteenth amendment, and a failure to comply with the requirements of Congress, but manifests a disposition to dis-* obey and defy the authority of the United States. If one could be admitted why not all ? And VTill it be contended that if the entire body had been composed of men who had usurped the functions of the legislature, against the express provisions of the reconstruc- tion acts, they could have complied with the provisions of those acts so as to create any obligation on the part of Congress to receive their Senators and Representatives ? Your committee are of opinion that the act of June 25, 1868, which required that the constitutional amendment should be dulyratified, must be held to mean that it must be ratified by a legislature which has in good faith substantially complied with all the re- quirements of law providing for its organization. It is true that after this pretended investigation by the two houses of the eligibility of their members the district com- mander recognized the validity of their proceedings, and permitted the State officers to be inaugurated and the State government to go into operation. On the 21st day of July the legislature passed a resolution of ratification of the fourteenth amendment and the pther resolution required by the act of June 25, 1868. On the 28th of July, 1868, the legislature went into joint convention for the election pf United States Senators. Joshua HiU received 110 votes; Joseph E. Brown, 94 votes, and A. H. Stevens, 3 votes, whereupon Mr. Hill was declared elected United States Senator for the term ending March 3, 1873. It is quite probable that Mr. Hill received votes of persons who were not qualified to hold seats in the legislature more than sufficient to constitute his majority and secure his election, but your committee do not propose to investigate that question. The elec- tion and qualification of members of lie legislature, where the existence of any legisla- ture authorized to act as such is not involved, cannot be inquired into by the Senate in determining the right of a Senator to his seg.t. Yptjr cpinn^ittee hole} that the question 288 SENATE ELECTION CASES. involved in this case is not whether persons not entitled to seats in the legislature were received by that body and allowed to vote upon the election of a Senator, but whethel- the body assuming to be the legislature violated the conditions upon which it was allowed .to organize by permitting disloyal persons to participate in its proceedings. It may, be contended that although the matters hereinbefore set forth constitute a failure on the part of the State of Georgia to comply in every respect with the reconstruction acts, yet Congress ought to waive these slight departures and admit their representatives. But an examination into the subsequent proceedings of the legislature of Georgia, and the dis- organized condition of society in that State, leads your committee to the conclusion that all these violations of law were in pursuance of a common purpose to evade the law and resist the authority of the United States. The colored members in the organization of the legislature, as has been stated, were allowed to take their seats. On the 9th of July, 1868, the day after such organization, the following action was had in regard to the three colored senators: "Mr. Welch moved that the action taken on yesterday, in regard to the eligibility of certain members, be reconsidered. Agreed to. " Mr. Sherman moved to strike out that portion of Mr. Candler's resolution which refers to the eligibility of Messrs. Campbell, Wallace, and Bradley. ' ' Mr. Candler moved to lay the resolution and amendment on the table. " Mr. Bradley, being entitled to the floor, resumed his speech of yesterday, in opposi- tion to the amendment of Mr. Candler, and yas followed by Mrr Campbell. "The matter was finally referred to the committee on privileges and elections." Thus this vexed question was, quietly smothered for the time. But Mr. Candler, on the 25th of July (a few days before the Senatorial election), offered the following resolu- tion, which was laid on the table: "Whereas ex-Governor Joseph E. Brown, one of the ablest lawyers in the Eepublican party of Georgia, as well as other persons, distinguished for their knowledge of constitu- tional law, held, during the late canvass, that persons of color were not entitled to hold ofiice under the existing constitution; and " Whereas such persons hold seats aa senators on this iioor; and "Whereas there are laws of vital importance to the people of Georgia, to be enacted by the general assembly, the validity of which should not be made uncertain because of 'a participation of their enactment by persons not entitled, under the constitution, to so participate: Therefore, / ' ' Be it resolved, That the committee on privileges and elections be directed to inquire into the eligibility of the several persons of color holding seats as senators and report at the earliest day practicable. " Mr. Hungerford moved to lay the resolution on the table. The motion prevailed. The question remained unsettled until after the Senatorial election and the adjournment of Congress. But on the 3d of September, 1868, the house of representatives of Georgia expelled twenty-four of its members on account of color, and subsequently expelled two more for the same reason, and on the 11th day of same month the senate expelled two of its members for a like reason, making twenty-eight members of the legislature that were expelled by the two houses without authority of law. For a full account of these proceedings see Exhibit D. ^ After the expulsion of the colored members the persons who received the'next highest number of votes for their places, under what is known in Georgia as the Irwin code, were permitted to take their seats. But no investigation as to their eligibility under the fourteenth amendment appears to' have been had. (See Exhibit D.) Your committee are of opinion that under the constitution of Georgia there is no dis- tinction in the right to hold office on account of race or color, and they are quite confi- dent that such was the opinion of Congress at the time it approved that constitution. This act of injustice and oppression denied the right of representation of a whole race, constituting nearly one-half of the people of Georgia. It will not be contended that there is no power in this Government to restrain in some form an outrage of this character. It certainly furnishes a strong reason why Congress should not at this time overlook the irregularities in the organization of the legislature of Georgia, and admit her Senators to representation. And this is not all. Your committee have examined the official reports of the various officers connected with the Freedmen's Bureau in Georgia, and find re- ported 336 cases of murders and assaults with intent to murder upon colored persons by the whites, from January 1, 1868, to November 15 of same year. For all of which there has been no legal redress and scarcely any effort whatever on the part of the author- ities to punish the criminals. And- it is stated "by these officers that they are unable to report fully as to the number and character of these outrages on account of iatimidation of witnesses, which is practiced by the perpetrators of ci?ime. Your committee have no source of official information as to outrages committed upon loyal whites, but it is HILL AND MILLER, WHITELEY AND FAEEOW. 289 represented by various and numerously signed petitions and memorials from tlie loyal people of Georgia that they are constantly exposed to violence, and are without protec- tion of law. It is- a matter of public notoriety that loyal white men are persecuted, murdered, and driven irom their homes. Several members of the legislature have been compelled to take refuge at the capital of the State where the national troops are sta- tioned to avoid the violence of the enemies of the United States. The unlawful and vindictive conduct of the legislature tend to confirm these statements and reports, and exclude all hope that the new civil government will afford adequate protection to life and property. Since the withdrawal of the military crime has greatly increased, while punishment for crime has diminished. Wherefore your committee feel called upon to recommend thai Mr. Hill be not allowed to take a seat in the Senate for the reason that Georgia is not entitled to representation in Congress, and submit the accompanying res- olution. Resolved, That Joshua Hill, claiming to be Senator-elect from Georgia, ought not now to be permitted to take a seat in this body. I concur in the conclusion of the report that Mr. Hill ought not to be admitted, and agree that the report be made. EOSCOE CONKLING. I concur in the conclusion of the report that Mr. Hill ought not now to be admitted, and agree that the report be made. FEED'K T. FEELINGHUYSEN. VIEWS OF THE MINOEITY. Mr. Trumbull asked and obtained leave to submit the following as the views of tie minority; which were ordered to be printed with the report of the Committee on the Judiciary on the credentials of Joshua Hill, Senator-elect from Georgia: The undersigned, being unable to agree with the majority of the committee in their report upon the credentials of Joshua Hill, claiming to have been duly elected and en- titled to a seat in the Senate from the State of Georgia, begs leave to present the reasons for his dissent. That Hill possesses all the qualifications for a member of the Senate of the United States required by the Constitution; that he is one of the few prominent men residing in a rebel State who remained true to the Union during the war; that he is now and has been at all times thoroughly loyal to the Union; that he is in every re- spect personally unobjectionable; that he was duly elected by the legislature of Georgia, and that his credentials are in due form is not questioned by any one. If he is not entitled to his seat, it must be either because the State of Georgia was not in a condition to entitle her to representation at the time of his election, or because the body which elected him was not the legislature of that State. The former-of these propositions, whether Georgia was or is in a condition to entitle her to representation, is not a question for the Senate to decide. The unfortunate dis- agreement which has existed for some years, between the President and Congress has, in part, been owing to a disagreement upon this very point; the President insisting that it was for each House of Congress to determine for itself in the admission of mem- bers whether a State was entitled to representation, and Congress insisting that it was for Congress to determine in the first instance whether a State was entitled to represent- ation, and that question being affirmatively settled, it was then for each House to judge for itself of the election, returns^ and qualifications of its own members. This contro- verted point was settled by Congress in March, 1866, by the passage through both Houses of the following concurrent resolution: "Resolved hy the House of Representatives (the Senate concurring), That, in order to close agitation upon a question which seems likely to disturb the action of the Govern- ment, as well as to quiet the uncertainty which is agitating the minds of the people of the eleven States which have been declared to be in insurrection, no Senator or Repre- sentative shall be admitted into either branch of Congress from any of said States until Congress shaU have declared such State entitled to such representation." The reconstruction acts, since indorsed by the people at a popular election, declare that "until the people of said rebel States shall be by taw— not by the action of each House — admitted to representation in the Congress of the United States, any civil gov- ernments which may exist therein shall be deemed provisional only;" which is equiv- alent to a declaration that when admitted to representation ly law they shall be no longer provisional. The supplementary act of March 23, 1867, declares that when the requirements of 'the reconstruction acts shall have been complied with by any of the rebel States in the formation of a constitution, and "said constitution shall be approved by Congress, the State shall be declared entitled to represcBtation, and Soaatora and Kepreeentativea S E C 19 290 SENATE ELECTION CASES. shall be admitted therefrom, as therein provided." This action of Congress, indorsed by the people, determined that neither House of Congress was authorized by itself to admit Senators or Representatives from any of the rebel States till Congress should determine by law that such State was entitled to representation. The converse of the proposition was also equally determined, that it would be the duty of each House to admit duly elected and qualified Senators and Representatives from each of said States whenever Congress shall have determined by law that such State was entitled to rep- resentation. On the 25th of June, 1868, Congress passed the following act: "AN ACT toadmit the States of North Carolina, South Carolina, Louisiana, Georgia, Alabama and Florida to representation in Congress. "Whereas the people of North Carolina, South Carolina, Louisiana, Georgia, Alabama, and Florida have, in pursuance of the provisions of an act entitled 'An act for the more eflScient government of the rebel States, ' passed March 2, 1867, and the acts supplement- ary thereto, framed constitutions of State government which are republican; and have adopted said constitutions by large majorities of the votes cast at the elections held for the ratification or rejection of the same: Therefore, '^ Beit enacted by the Senate and House of Bepresentatives of tlie United States of America in Congress assembled, That each of the States of North Carolina, South Carolina, Louisi- ana, Georgia, Alabama, and Florida shall be entitled and admitted to representation in Congress as a State of the Union when the legislature of such State shall have duly ratified the amendment to the Constitution of the United States proposed by the Thirty- ninth Congress, and known as article 14, upon the following fundamental conditions: That the constitutions of neither of said States shall ever be so amended or changed as to deprive any citizen or class of citizens of the United States of the right to vote in said State, who are entitled to vote by the constitution thereof herein recognized, except as a punishment for such crimes as are now felonies at common law, whereof they shall have been duly convicted under laws equally applicable to all the inhabitants of said State: Provided, That any alteration of said constitution may he made with regard to the time and place of residence of voters; and the State of Georgia shall only he entitled and ad- mitted to representation upon this further fundamental condition: that the first and third subdivisions of section 17 of the fifth article of the constitution of said State, ex- cept the proviso to the first subdivision, shall be null and void, and that the general assembly of said State by solemn public act shall declare the assent of the State to the foregoing fundamental condition. ' ' Sec. 2. And be it further enacted, That if the day fixed for the first meeting of the legislature of either of said States by the constitution or ordinance thereof shall have passed or have so nearly arrived hefore the passage of this act that there shall not be time for the legislature to assemble ht the period fixed, such legislature shall convene at the end of twenty days from the time this act takes effect, unless the governor-elect shall sooner convene the same. "Sec. 3. And be it furtlier enacted. That the first section of this act shall take effect as to each State, except Georgia, when such State shall, by its legislature, duly ratify article 14 of the amendments to the Constitution of the United States, proposed by the Thirty-ninth Congress, and as to the State of Georgia when it shall in addition give the assent of said State to the fundamental condition hereinbefore imposed upon the same; and thereupon the ofiScers of each State duly elected and qualified under the con- stitution thereof shall be inaugurated without delay; but no person prohibited from holding office under the United States, or under any State, by section 3 of the proposed" amendment to the Constitution of the United States, known as article 14, shall' be deemed eligible to any ofiice in either of said States, unless relieved from disability as provided in said amendment; and it is hereby made the duty of the President within ten days after receiving official information of the ratification of said amendment by the legislature of either of said States to issue a proclamation announcing that fact." On the very day of the passage of the foroegoing act Rufus B. Bullock, governor-elect of Georgia, issued his proclamation convening the legislature of that State on the 4th of July following. The,manner in which the legislature was organized will fully appear from the following extract, taken from the official report of Major-General Meade: "The convention in Georgia, after being in session several months, finally, in March, adopted a constitution, which together with a State ticket was submitted to the people in April, and ratified by a very handsome majority of the registered vote — all parties taking part in the election. This constitution, with some modifications, was adopted by Congress, and the legislature, which convened in July, making these modifications and otherwise complying. with the requirements of the reconsf ruction laws, the State, together with Alabama and Florida, were, by act of Congress, formally admitted to representation. " There is one point in regard to the admission of the State of Georgia to which I feel ■called upon to make special allusion. "When the legislature was convened by the pro- HILL AND MILLER, WHITELEY AND FAEKOW. 291 visional governor and governor-elect, the question arose whether, as military com- mander, I was called on to inquire into the eligibility of the members, either under the United States laws or the constitution of Georgia. The convention of Georgia had, in its ordinance calling an election, directed that all returns should be sent to the military commander of the district, who was requested to issue thenecessary certificates of election. In carrying out this request of the convention I deemed my duty simply required that I should give the member having the greatest number of votes the ordinary certificate of election, and that it would be for each house to decide on the eligibility of those members whose seats were on any grounds contested. "Whilst I admitted, as district commander, executing the law, I was to see that no one ineligible to of&ce under the fi)ur- teenth article constitutional amendment should be allowed to take ofBce, I did not see ' that in the case of a parliamentary body I was called on to decide on the qualifications of the members. In this view I was sustained by a telegram sent to me for my infor- mation from the War Department, which had been sent to the governor of Loiiisiana and the military commander of the fifth district, and which I qnote: " 'Washington, June 30, 1868. "' To Governor Wabmouth, JVeie Orfeaws: ' ' ' We think the persons disqualified under the fourteenth article of the amendment to the Constitution of the United States are not eligible to your legislature. This is to be determined by the respective houses; but no oath can be imposed except the oath pre- scribed by the State constitution. " 'JAMES WILSON, " 'Chairman Judiciary Committte. " 'GEOEGE F. BOUTWELL, '"J. F. FAENSWOETH, '"H. E. PAINE, '" Beconstruclion Committee.' " It will be seen by the above telegram that the distinguished gentlemen whose names were attached were of the opinion, first,, that no one ineligible to office under the four- teenth article could take a seat in the legislature; second, that the respective houses were to judge of the question ; third, that no oath testing this eligibility could or should be prescribed in advance of the meeting of the legislature. These views being in accord- ance vyith my own, I acted on them, and was present at the organization of the two houses of the Georgia legislature; to the members declared in my order as having the highest number of votes, there being administered only the oath prescribed by the State constitution. After these houses were organized, the provisional governor informed ine officially of their organization, but that, as far as he could learn, no steps had been taken to test the question of the eligibility of members under the fourteenth article. I re- plied to the governor that until the State was admitted to representation the legislature and all the officers were only provisional, and subject to the paramount authority of the district commander, and that in the exercise of this power I should consider all acts of the legislature null and void until satisfactory evidence was presented to me that each house had purged itself of ineligible members under the fourteenth article, provided there were any such in either house; and I desired the provisional governor to communicate these views to each house. On the receipt of this letter, each house at once ordered an investigating committee and inquired into the qualification of each member, and duly reported this fact through the provisional governor, stating at the same time that neither house had foiind any member ineligible. "The provisional governor, in transmitting these communications, expressed the opinion, founded on evidence presented to him, that several members in both houses were ineligible, and called on me to exercise my power and require said members to vacate their seats. On reflecting upon this subject, I could not see how I was to take the individual judgment of the provisional governor in the face of a solemn actof a par- liamentary body, especially as, from the testimony presented, I did not, in several cases, agree vrith the j udgment of the provisional governor. The question was simply whether, in the construction of a law, and in considering the facts of individual cases, I should make myself, the judge, or take the opinion of the provisional governor, in the face of the official information that a parliamentary body had gravely and forinally, through a committee, examined, reported, and acted on these cases. My judgment was decidedly that I had fulfilled my duty in compelling the houses to take the action they had, and that having thus acted, I had neither the authority, nor was it politic or expedient, to overrule their action, and set up my individual judgment in opposition. By an inspection of the telegram sent July 18, and the reply of -the General-in-chief, July 23, it will be seen that my views and actions were approved. I allude thus in extenso to this subject, because his excellency the governor of Georgia, in a public speech recently delivered at 292 SENATE ELECTION CASES. Albion, N. Y.,ispleased to attribute the failure ofGeorgia to be properly reconstructed to my action in failing to purge the legislature of his political opponents, he having advised rae, when he urged such action, that his friends had been relieved of their disability by "The States being admitted to representation, the civil power vested in the military commander by the reconstruction acts ceased, and civil authority resumed its sway." The foregoing extract, together with copies of ofiacial correspondence between Major- General Meade and General Grant, hereto attached, establish the fact that the legislature of Georgia fully complied with the requisitions of the act of June 25, 1868 ; and the fact of her ratification of the fourteenth amendment was duly proclaimed by the President, as also appears by a copy of the proclamation hereto attached. Congress having decided that Georgia was entitled to representation through the State government organized under the reconstruction acts, on complying with the conditions therein named, it is not competent for either house, now that the conditions have been complied with, to refuse admission to members on th^ ground that the State is not en- titled to representation. For either House to do so would be for such House to set aside a solemn act of Congress, passed by both Houses, and to repudiate the principle on which it differed with the President and went before the people in the popular elections. The ' House of Representatives, conforming to the law of Congress, has admitted to seats the Eepresentatives from Georgia against whom no personal objection was made, without any further inquiry than whether Georgia had complied with the conditions oTthe act of June 25, 1868. No attempt was made in that body to revise the decision of Congress. The assumption that the constitutional amendment was not adopted in good faith is not sustained by a particle of evidence before the committee, and is contradicted by the oflScial report of Governor Bullock to General Meade, by the orders of General Meade, and those emanating from the General-in-chief, by the proclamation of the President, made in pursuance of law, by the action of the House of Eepresentatives in passing upon the admission of members to that body, and by the acquiescence of all the departments of Government from July until now. If one branch of Congress is at liberty to deny aState representation on the ground that it did not act in good iaith in agreeing to the condi- tions prescribed by Congress, what is to preventeitherHouseof any other Congress, acting on a like assumption, from denying admission to members from any other of the recon- structed States? It is well known that a large political party in the country believe the reconstruction acts unconstitutional. Should that party hereafter obtain ascendency in either House of Congress, is it to .be at liberty to overturn the State governments which liave been established in pursuance of law and to quote as a precedent the action of the Senate in this case? When are we to have peace and civil governments established in the late rebel Sta,tes under such a policy? The question has been asked if one person disqualified by the fourteenth amendment could be permitted to act as a member of the Georgia legislature, why not all; and if all, would it be pretended that it was a legisla- ture organized in accordance with the' reconstruction acts ? Probably not; and the same question, with the same force, may be asked in reference to Congress or any other legis- lative, body in the land. If a disqualified person or several such were permitted to act as members of Congress or a State legislature, does anybody pretend that the action of the body would be vitiated thereby, and yet who would not admit that if a body of men were to assemble and undertake to act as the Congress or the legislature of a State, all of whom were disqualified from acting as such, that their action would have any validity? No such case is to be presumed, and no legislative body is justified or safe in basing its action on supposititious cases which never have and are not likely ever to occur. No such state of facts is presented in the case of Georgia. Not one in ten of the members of the senate, after deducting those from whom the disabilities had been removed by Congress, and not one In fifty of the members of the house were found disqualified by even the mi- nority of the committee who investigated this subject, and each house decided all its members to be qualified. The constitution of Georgia, which was accepted by Congress, like that in all the other States, and like the Constitution of the United States, in regard to Congress, leaves to each house the exclusive right to j udge for itself of the election and returns of its own members, and that j udgment, when pronounced, is conclusive every- where. There was not a shadow of anything deserving the name of evidence before the committee to show that either house of the legislature of Georgia acted corruptly or fraudulently in passing upon the right of members to their seats under the fourteenth amendment. The Senate has no right, in the opinion of the undersigned, to revise the action of Con- gress, disregard its laws, and refuse Hill his seat, because in its opinion Georgia is not entitled to representation, when Congress has decided otherwise, and the Executive and the General-in-chief have acted on that decision. It being admitted that Hill is entitled to his seat if Georgia is entitled to be represented iti the Senate, and it being shown that Georgia has feeen ^eglwed \)j law to be wtitM \ method by which the houses are to perfect their organization, i. e., by taking certain oaths and by the election of officers, and they also provide that the neglect to take such oaths shall disqualify the pers6ns so neglecting and make them ineligible to seats, and that false swearing in taking-such oaths shall be perjury, and be punished as such. " The next section (5th) provides severe penalties for any interference with the taking of such oaths and participation in the proceedings. "The seventh section requires the President to employ the military foices of the United States so far ' as may be necessary to enforce and execute the prjtediug provis- ions of this act. ' / " Under this act the governor of Georgia did summon the persons elected to the legis- lature, as named in the proclamation ol General Meade, to assemble at the Slate- house in Atlanta on the 10th day of January, 1870. "In pursuance of this proclamation the geater part, and nearly all the persons named, assembled at the time and place named. "A quorum of the Senate took the oaths prescribed, and organized as provided for in the act. "The members of the house of representatives were called to order by one Harris, not a member or officer, but who had been designated for that purpose by the governor. Some of the members protested against this and attempted to elect a speaker^ro tempore, but were prevented by said Harris and his assistants; and thenceforth, .until the final organization of the house, Harris continued to preside and to adjourn the body from time to time, according to his own pleasure, without consulting the house, and to determine what persons who had appeared as members should be permitted, from day to day, to take the prescribed "oaths, and take their seats. " This proceeding was in substance ratified by the general in command at Atlanta, who had been< after the passage of the act of December 22, 18G9, appointed to the com- mand of Georgia, as a military district under the act of March 2, 186'7. " It having been suggested to the general in command that sundry persons had taken or were about to take the oaths prescribed in the act of December 22, 1869, falsely, he directed that those accused of such improper conduct orpurpose should, for the time being, be excluded from participation in the proceedings, and thereupon organized a board of military officers for the purposes set forth in the following general orders: " ' [General Orders No. 3.] " ' Hbadquaetbes Militaey Disteict of Geoegia. " 'Atlanta, Ga., January 13, 1870. " ' In pursuance of instructions received from the headquarters of the Army, a board is hereby appointed to inquire into the eligibility of W. T. Winn, of Cobb County ; John J. Collier, of Dooly County;^ A. W. Holcomb, of Milton County; W. J. Anderson, of Houston County; B. B. Hinton, of Marion County; andC. J. Welborn, of Union County, to seats in the legislature of Georgia, under the reconstruction acts. " ' The board will meet and organize^at once, and will have power to administer oaths and send for persons and papars. They will permit the persons whoso eligibility is iu question to appear before them either in person or by attorney, and will also permit the HILL AND MILLER, WHITELEY AND FARROW. 299 appearance before them of persons who deny the eligibility of said W. T. Winn, J. J. Collier, A. W. Holconib, W. J. Anderson, B. B. Hinton, and C. J. Welborn. ■"The board will keep a complete and accurate record of the proceedings and of all testimony which may be given before them, and will transmit the same to these head- quarters with its report. " 'Detail for the hoard. — Bvt. Maj. Gen. T. H. Rnger, United States Army; Bvt. Brig. Gen. T. J. Haines, United States Army; Maj. Henry Goodfellow, judge-advocate, United . States Army. " ' By order of Brevet Major-General Terry: '"J. H. TAYLOR. " 'Assistant Adjutant-General. '"Official: '"R. P.HUGHES, " 'Acting Assistant Adjidant-GeneraV " ' [Gteneral Orders No. 4.] " ' Headquabtebs Militaby Disteict of Geobgia, > " 'Atlanta, Oa., January 15, 1870. " 'The board of officers convened by General Orders No. 3, current series, from these headquarters, is hereby directed, in addition to the duty assigned to them by thatorder, to inquire into the eligibility under the reconstruction acts of the following-named mem- bers-elect of the house of representatives, viz: " ' Isham Raddish, of Appling County; R. W. Phillips, of Echols County; E. M. Tal- iaferro, of Fulton County; J. H. Nunn, of Glascock County; R. A. Donaldson, of Gor- don County; W. P. Price, of Lumpkin County; J. N. Harris, of Murray County; L. H. Walthall, of Polk County; L. C. A. Warren, of Quitman County; Thomas F. Rainey, of Schley County; C. C. Humber, of Stewart County; G. N. Harper, of Sum- ter; Frank Wilchar, of Taylor County; John B. Sorrells, of Walton County; J. D. Smith, of Ware County. " By order of Brevet Major-General Terry: '"J. H. TAYLOR, " 'Assistant Adjutant-General.' " The board proceeded to discharge its duties, and on the 25th day of January, 1870 the result of its action was promulgated as follows: " ' [General Orders No. 9.] " 'Headquabtebs Militaby Disteict or Georgia, "Atlanta, Ga., Jariuary 25, 1870. " 'Whereas the board convened by General Orders No. 3, current series, from these headquarters, consisting of Bvt. Maj. Gen. T. H. Ruger, colonel Eighteenth United States Infantry; Bvt. Brig. Gen. T. J. Haines, commissary of subsistence; and Maj. Henry Goodfellow, judge advocate. United States Army, has made its report in writing, by which it appears that R. A. Donaldson, of Gordon County; E. M. Taliaferro, of Fulton County, and J. H. Nunn, of Glascock County, members-elect of the house of represent- atives of Georgia, are not eligible to seats therein under the laws of the United States: Therefore it is hereby ordered that the said R. A. Donaldson, E. M. Taliaferro, and J. H. Nunn be, and they hereby are, prohibited from taking part in the organization of said house, or from attempting to exercise the functions of a member thereof; and " ' Whereas the said board have found that Thomas F. Rainey, of Schley County; J. N. Harris, of Murray County; R. W. Phillips, of Echols County; L. C. A. Warren, of Quitman County; Joseph D. Smith, of Ware County; W. P. Price, of Lumpkin County; J. B. Sorrels, of Walton County; G. N. Harper, of Sumter County; C. C. Humber, of Stewart County; L. H. Walthall, of Polk County; and Isham Raddish, of Appling County, are eligible to seats in the said house under the laws of the United States, no objections will be made to their participating as members in the organization of the house; and ' ' ' Whereas it appears that Frank Wilchar, of Taylor County, has since the commence^ ment of the session of the board been, and is now reported to be, absent from the city, so that the board has not been able to determine in his case, it is therefore ordered that the said board stiU hold his case under consideration, and that in the mean tinie, and 300 SENATE ELECTION CASES. nntil his ease be heard and determined, said Wilchar be prohibited from taking any part in the organization or participating in the proceedings of the house; and " 'Whereas J. B. Burtz, of Mitchell County; J. A. Briuson, of Emanuel County; A. T. Bennett, of Jackson County; A. M. George, of Baker County; David Goff, of Randolph County; William J. Hudson, of Harris County; D. Johnson, of Wilcox County; Henry C. kellogg, of Forsyth County; J. W. Meadows, of Johnson County; J. H. Penland, of Unioii County; Robert C. Surrency, of Tatnall County; J. R. Smith, of Coffee County; Hiram Williams, of Dooly County; John C. DrakS, of Upson County; J. T. Ellis, of Spalding County; J. M. Routh, of Worth County, persons elected to said house, have re- fused,, declined, neglected, or been unable to take one of the oaths prescribed by the act of J)ecember 22, 1869, although ample opportunity so to do has been given them, and have thus by the terms of said act become ineligible to seats in said house, and have also filed with the Hon. E. B. Bullock, governor, their applications to the'Congress of the United States for relief from their disabilities, thus admitting their ineligibility to hold the of&ces to which they were elected: It is therefore ordered that, the said persons be, andr they hereby are, prohibited from taking seats in said house or participating in "the organization or proceedings thereof. " 'By order of Brevet Major-General Terry: '"J. H. TAYLOR, / ' ' 'Assistant Adjutant-General. ' " By this action three of the members-elect of the house were excluded on proof of their ineligibility, and eleven admitted on proof of their being eligible. " One person was prohibited from participating until the further order of the general, he not having arrived at Atlanta, and his case not having been disposed of. "And it was further declared that sixteen other members-elect were excluded from participating in the proceedings, as having refused, declined, neglected, or been unable to take the oaths, although ample opportunity so to do had been afforded them, and because they had applied for relief from disabilities. "These steps having been taken, the persons admitted to seats proceeded to elect a speaker on the 26th of January, 1870, and the result was officially communicated to headquarters at Washington, as follows: " 'Atlanta, Ga., January 26, 1870. " 'House organized this morning by electing McWhorter, Republican candidate, as speaker. On report of board three persons were excluded as ineligible; eleven of those inquired into were pronounced eligible; sixteen who refused to take oath were declared to have become ineligible by their refusal; and one, whose case was sent to the board, having failed to appear, and being absent from the city, was forbidden to take part in organization. After careful examination of act of December 22, 1 decided that the fourth . section would not permit me to seat the next highest candidates in place of ineligible persons. " 'ALFRED H. TERRY, '"Brevet Major-Gtneral. "'General E. D. Townsbnd.' "The intervening action of the military commander terminated at this time. "Upon this history the committee are constrained to say that, in their opinion, the before-stated action of the military authorities was not authorized by law. ' ' The legislature elected in Georgia under the acts of Congress authorizing it was not a part of the government' declared by the law not to be legal and to be provisional; but it was a part of the new government designed by Congress to take the place of the provis- ional governmeijt, as a permanent one. This seems perfectly clear from the words of the law; and this view of the subject was taken by the General of the Army by his order to General Meade, of March 2, 1868 (Meade's Rep., page 24), and again in the same way ' on the 29th of April, 1868 (Meade's Rep., page 30), as follows: " 'Washington, D. C, March 2, 1868. ' ' ' The election proposed by the convention for officers under the new constitution I do not consider as an election for officers under the provisional government, referred to in section 6 of the act approved March 2, 1867. It is clear to my mind that a proper con- struction of section 4 of act approved March 23, 1867, does not authorize district com- manders to fix or change the day of election after it has been designated by the conven- tion. '"U. S. GRANT, General. " 'Maj. Gen. Gkoege G. Meade, " 'Commanding Third Milita/ry District,^ HILL AND MILLEK, WHITELEY AND FARROW. 301 " ' Headquartees War Department, "'Washington, D. C, April 29, 1868. " ' I have carefully read your letter of 16th April, and its inclosures. I see nothing in them to change my opinion as expressed to you in my dispatch of March 2, 1868. ' ' ' The officers elected under the new constitution of Georgia are not officers of the pro- visional government referred to in the reconstruction acts, nor are they officers elected under any so-called State authority, and are not therefore required to take the oath pre- scribed in section 9, act of July 19, 1867. The eligibility to hold~ office must be deter- mined by the new constitution, and the amendment to the Constitution of the United States designated as article 14. '.' 'U. S. GRANT, General. " 'Maj. Gen. George G. Meade, " 'Commanding Third Military District.' " It does not follow from this that a legislature thus situated, and before the admis- sion of the State, is independent of the laws of Congress. It is not; but it is thought that the correction of any misbehavior of it or its members rests with Congress, and not with the military. "But however this might have been under the acts of March, 1867, the act of Decem- ber 22, 1869, must be the special guide for the present purpose. It must be supposed that it speaks the will of Congress, even though that will may not accord with the acts of 1867, and even though it should be conceded (as it is not) that it would have been lietter had full discretion over the seating of the members of the Georgia legislature been left to the general in command. The question is what the law is, not what it might have been, or what it might be wished to be. "The act only invokes military action in aid of what it provides shall be done; no more. ^ "The act, as has been seen, is clear and simple in its provisions. The governor was empowered to do one thing only, i. e., summon the members-elect. ' ' That being done, the next duty was imposed in express terms on the general assem- bly of Georgia and its several members. The consequences of a failure to perform that duty were next pointed out in explicit language, i. e., those who should neglect to qualify should not have seats, and those who should falsely obtain them should be punished by a specified civil tribunal in a specified way. And for these purposes, and subject to these conditions, it was provided, in order to secure the free and full compli- ance with the act, that any interference with members in their attempt to swear in, or in sitting, should be criminal. "It has been suggested that the words in section 4, 'entitled to compose such legis- lature,' might be construed to vest in the military commander the power to decide what persons were entitled to sit; but it does not appear possible to do this in the face of the express prior provisions of the act giving every member the right of his own will to take one of the oaths prescribed, and in the face of the subsequent provisions declar- ing the interruption of any person ' elected as aforesaid ' in taking the oaths and his seat to be criminal and punishable. But the clause in question does not look to con- ferring any authority, but is only a definition or description of the persons upon whom the law conferred the power to act, i. e., those who by Meade's proclamation were elected and who should swear in. "It has been seen that the legislature, as originally elected and organized in 186-, was not a 'provisional' legislature within the purview of the acts of reconstruction, but that it was a State legislature authorized by Congress to be elected and assembled, but not having absoMe legislative power until the admission of the State to representa- tion. And in this condition it is worthy of notice that when the act of December 22, 1869, was under consideration, this committee reported it with a provision making the legislature ' provisional ' until the further action of Congress, and that provision was rejected by the Senate. ' ' For these reasons the committee is of opinion that the acts of Harris beforementioned, and the action of the general in command in excluding the persons who either had taken or were willing to take the oaths provided were not warranted by law. "The order excluding those who confessedly declined to take the oaths was purely ministerial, and may be regarded as in proper compliance with the seventh section of the act. " It is due to the general in command to say that the circumstances justify the com- mittee in reporting that his whole conduct in the affair was under the sincere belief that he was acting within the limits of hia lawful authority, and that under circum- stances of much difficulty and delicacy he conducted affairs (although outside of the law) in such a manner as to command the personal confidence and respect of all parties ftrid persons coacewed. And the Qommittee is also of opinion that tUe three persona 302 SENATE ELECTION CASES. excluded, who desired to qualify, were persons who would have violated the act by taking the oath, so that in respect to them there was no actual injustice done. "After the house of representatives had thus organized, it admitted to seats several persons who, in the elections, had been candidates against the persons so excluded, but had been beaten, receiving only a minority of the votes cast. ■ - ' ' On the hearing before the committee it was conceded that there was nothing in the constitution or laws of Georgia which would warrant such a proceeding, but it '^as con- tended that this action was warranted by the general principles of parliamentary law, which, it was claimed, authorized the bpdy charged with deciding who is elected to treat as not cast all votes given for an ineligible candidate, and so to conclude that the eligible candidate having the greatest number of votes is the choice of the majority of the electors, although he in fact received only the votes of a minority. "However this may be in cases in which a plurality elects, or in which the want of capacity in the candidate is of such a manifest and indisputable and notorious character as to warrant the presumption that the electors in voting for him intended to throw away their votes (which the committee do not decide), it is clear that no such, rule can be applied to cases of the nature now under consideration, in which the test of eligibility is somewhat broader than the one existing at the time of the election, and in which, in either case, the question depends on the true application of the law to conclusions of facts to be drawn from various circumstances, not necessarily notorious or Indisputable in their character. " The committee are, therefore, obliged to conclude that the persons thus admitted were not lawfully entitled to seats in the Georgia legislature. And it should, perhaps, be mentioned that on the hearing before the committee on the occasion of the consid- eration of the act of December 22, 1869, it was contended by the persons asking con- gressional intervention in the affairs of Georgia that there was no authority for the seating of minority candidates by the legislature, as had been done on the expulsion of the negro members; and that one distinct -ground upon which the passage of that act was rested as illegal and revolutionary was that fact. The interpretation of the law cannot be made to chaifge according to the changing wishes of those who invoke its assistance. "The committee, then, report, under the first-named resolution, that in the following respects the organization of said legislature has not been warranted by law: "1. In the coiitrol and-direction of its proceedings by Harris. "2. In the exclusion from taking the oaths and from seats of the three members- elect who offered to swear in. "3. In the seating of the persons not having a majority of the votes of the electors. "In respect to- the second resolution before recited, calling upon the committee to report whether any further legislation is necessary in respect to the organization of the .legislature in Georgia, the committee report that a full hearing was giveh to both sides of the controversy there, and that the representatives of the great body of those who contended that the proceedings aforesaid had been illegal and irregular expressed their willingness that Congress should refrain from further interference with the organization and composition of the legislature, and leave it to proceed in the exercise of legislative functions, notwithstanding the matters before mentioned, if the provisions of the con- stitution of Georgia and the ordinance of its convention could be carried out, providing for a fresh election of one-half the senators and allof the members of the house of repre- sentatives in November, 1870. The other party justifies what has taken place, and of course objects to any action on the subject. , "In this condition of affairs, inasmuch as the errors of the general in command, before stated, do not appear to have worked any serious injustice in point of fact, and as the error in seating the minority candidates was committed by the house of representatives in the exercise of a right ordinarily belonging to it in the first instance; and inasmuch as it appears certain that the term of office of the members of the Georgia legislature and of its State government will expire at the same time that it would have done had the State been fully restored to its place in the Union in July, 1868, and do not commence or run from the date of her future admission to representation, and that without refer- ence to what might be the legal or literal construction of the last clause of the second subdivision of the first section of the third article of the constitution of Georgia, in the following words: 'The general assembly may by law change the time of election, and the members shall hold untU their successors are elected and qualified,' any interpreta- tion of this constitution which should have the effect to allow the extension of the term of office of the members of its general assembly at their own will and pleasure, and without a fresh expression of the will of the people, would be contrary tothe essential principles of free institutions, and, if carried into practice, subversive of a republican form of government in that State, which would authorize the constitutional intervention of the United States to correct it; and it could not have been the intention of the people, HILL AND MILLER, WHITELEY AND FARROW. 303 from whose adoption that constitution derives its authority, to confipr such a power as this construction would give, nor could such have heen the understanding of Congress when it passed the act of June 25, 1868; and inasmuch as the chief body of those aggrieved by the wrongs before stated is, upon the i'aith of this conclusion of the com- mittee in the respects last mentioned, willing to accept the existing state of things; and as it appears to be of much importance to the people of the whole country as well as to the people of Georgia that the final and harmonious restoration of all the States lately in rebellion to full representation, privileges, and responsibilities as members of the Union should be accomplished at the earliest practicable moment, in order that the united and friendly efforts of the whole people may be given to the arts of peace and the means of true progress, the committee feel justilied in omitting to recommend aijy further legislation on the subject of the organization of the legislature in Georgia." Under the act of June 25, 1868, the legislature of Georgia, consisting by the constitu- tion of that State of forty-four senators and one hundred and seventy-five representatives, was convened on the 4th of July, 1868, and, after having, so far as formality of procedure is concerned, complied with the provisions of that act, proceeded on the 28th of July, J 868, to the election of persons to represent said State in the Senate of the United States., The election was consummated in joint meeting of the two houses on the next day by the following vote: For Senator for the term ending March 4, 1873, Joshua Hill received IIC, votes; Joseph E. Brown received 94 votes; Alex. H. Stephens received 1 vote; C. W. Styles received 1 vote; and Hill was declared duly elected. For Senator for the term ending March 4, 1871, the vote was as follows: H. V. M. Miller, according to the table as it appears in the journal, received 120 votes, but on counting the names of the persons recorded as voting, Miller received 117 votes; Foster Blodget* received 72 votes; J. L. Seward received 13 votes; A. T. Akerman received 6 votes; and Miller was declaredduly elected. The colored members of the legislature, as well as those alleged to be disquali- fied, were present and participated in this election. It was not till September 3, more than a month afterward, that the legislature refused to recognize colored persons as mem- bers. Appended is a copy of the order of Major-General Meade, giving a list of the persons elected to the senate and honseof representatives of Georgia-, marked Exhibit A; also a copy of the vote in detail for Senators at the time Hill and Miller were elected, showing for whom each member voted, marked Exhibit B. Three of the members who voted for Hill, to wit, Donaldson, Taliaferro, and Nunn, after having taken the oaths required by the act of December 22, 1869, were, on investigation of a military commission, declared ineligible, and prohibited by military order from further participation in -the reorganized legislature; and sixteen others, eleven of whom, to wit, Burtz, Drake, Ellis ol Spalding County, George, Goff, Hudson, Johnson of Wilcox, Kellogg, Meadows, Penland, and Williams of Dooly, voted for Hill, and one of whom, Surrency, voted for Brown, were, by a like order, excluded from participating in said reorganization, as having refused or been unable to take the oaths required, and because they had applied for relief from polit- ical disabilities. No inquiry into the eligibility of any of the sixteen thus excluded was made, and the order excluding two of them, to wit, Wilchar and Bennett, was subsequently revoked. Two others, M. J. Crawford and John C. Drake, have made afELdavit that they were en- titled to seats in the reorganized legislature, which by threats of prosecution they were deterred from occupying at the time. Their affidavits are appended, marked Exhibits C and p. Another of the sixteen, J. H. Penland, states as follows: "I was induced to sign an application for pardon through mistake, and did not mean thereby to admit that I labored under any disability to take the necessary oaths, and resume my seat in the house as a member from the county of Union. ' ' A copy of Penland's statement from the journal of the house is appended, marked Exhibit E. The journal shows that Bradley, one of the senators who voted for Brown, was subse- quently, tt)re n^ore than sufl^cieut to coiistitute his majority and secure HILL AND MILLER, WHlTELETf AM) FARKOW. 309 his electiott, bttt your committee do not propose to investigate that question. The elec- tion and qualification of members of the legislature where the existence of any legislature authorized to act as such is not involved cannot be inquired.into by the Senate in deter- mining the right of a Senator to his seat. Your committee hold that the question in- volved in this case is not whether persons not entitled to seats in the legislature were received by that body and allowed to vote upon the election of a Senator, but whether the body assuming to be the legislature violated the conditions upon which it was allowed to organize by permitting disloyal persons to participate in its proceedings. It may be contended that although the matters hereihbefore set tbrth constitute a lailure on the part of the State of Georgia to comply in every respect with the reconstruction acts, yet Congress ought to waive these slight departures and admit their representatives. But an examination into the subsequent proceedings of the" legislature of Georgia, and the disorganized condition of society in that State, leads your committee to the conclusion that all these violations of law were in pursuance of a common purpose to evade the law and resist the authority of the United States." It is now contended that the Senate should waive the rebellious acts of this pretended legislature and accept the Senators it elected while it was knowingly and willfully defy- ing the authority of the United States; and this, too, after Congress in its legislative capacity has, in effect, declared this organization illegal by ordering a reorganization to be made. So radical had been the legislation of Congress in respect to Georgia that'it was deemed necessary in the act admitting the Statfe, passed on the 15th of July last, to expressly ratify certain things that had been done to avoid the conclusion that Congress intended to annul all the acts of this pretended State government. The language of that law is as follows: "But nothing in this act contained shall be construed to deprive the people of Georgia of the right to an election for members of the general assembly of said State, as provided for in the constitution thereof; and nothing in this or any other act of Congress shall be construed to affect the term to which any oflScer has been appointed or any member of the general assembly elected as prescribed by the constitution of the State of Georgia." Why say that this act should not deprive the people of Georgia of an election under their constitution at the time fixed therein, if the act itself was an approval ofwhat they had done and related bacli to the organization of the State ? Why say that nothing in this or any other act of Congress shall affect the term to which any officer has been ap- pointed, or any member of the general assembly elected, if the act itself was to be con- strued to relate back to the first organization and amount to a legislative declaration that Congress approved of that organization ? The fact is, that these acts of Congress had treated the State as not yet fully reconstructed, and it was thought necessary toex- pressly approve certain important matters, to the end that it might not be claimed that they were disapproved. If Congress had intended to approve of the election of Senators, it seems natural that such intention should have appeared in the list of those things which were not to be affected or disturbed. It is suggested that there is some doubt about the regularity of the election of Mr. Farrow, for the reason that there was no quorum present in the house of representatives at the time of his election. The records show that the house, when reorganized and dis- loyal members excluded, consisted of one hundred and fifty-four members, and Mr. Far- row alleges that one member, Kobert Lumpkin, who had been sworn in, died before the Senatorial election, leaving the number one hundred and fifty-three. A quorum of this number would be seventy-seven. The number of persons present and voting was eighty- two, of which Mr. Farrow received' eighty. But it is said that minority men were im- properly admitted. We might answer this by saying they were admitted by the legisla- ture, and that the Senate will not ordinarily review the action of that body in deciding upon the qualification of its own members. But if the Senate would enter upon such an Investigation under any circumstances (which on mature reflection we now think may be open to some doubt) it cannot be called upou to do so in this case. The question of the proper organization of the legis- lature in January, 1870, was, at the last session, under lnvestiga,tion in both Houses, on the passage of the act of July 15, 1870. The report of the Judiciary Committee of the 2d of March last, printed as a part of the majority report, recommends that no further legislation be had to perfect the organization of the legislature of Georgia as it then ex- isted, and Congress, acting on that report, decided it to be a legal legislature. But admitting that the minority men were improperly received, tKe result would be the same. The number of members declared elected in General Meade's order, who were allowed to qualify and retain their seats, leaving out of the calculation those who are known as " minority men," was one hundred and forty-one. Deducting Mr. Lumpkin, who is alleged to have died before the Senatorial election, 310 SENATE ELECTION CASES. and we have one hundred and forty. Necessary to a quorum, seventy-one. Number of persons present and voting on the election of Mr. Farrow, seventy-one. Of this num- ber Mr. Farrow received sixty-nine. Thus it appears in either case a quorum was pres- ent, and Mr. Farrow had a majority of that quorum. AU other matters in regard to the election of Messrs. Farrow and Whiteley, we be- lieve, are admitted to have been regular. We therefore recommend for adoption a resolution declaring Henry P. Farrow and Eichard H. Whiteley elected, and entitled to seats in the Senate on taking the oaths required by law. WM. M. STEWART. B. F. RICE. The following is the resolution proposed: Beaolved, That Henry P. Farrow and Richard H. Whiteley are entitled to take their seats in the Senate, upon taking the oath prescribed by law. Monday, January 30, 1871. On motion by Mr. Trumbull, that the further consideration of the said bill be post- poned, and that the Senate proceed to the consideration of the resolution reported by the Committee on the Judiciary, declaring that Joshua Hill has been duly elected a Senator by the legislature of the State of Georgia, and is entitled to take his seat on taking the oaths required by the Constitution and laws, it was determined in the affirm- ative; and the Senate proceeded to consider the said resolution. After debate, On motion by Mr. Stewart to amend the resolution by striking out all after the word "resolved," and inserting in lieu thereof the words, " That Henry P. Farrow and Richard H. Whiteley are entitled to take their seats in the Senate, upon taking the oath prescribed by law," It was determined in the negative — yeas 19, nays 36. On motion by Mr. Stewart, the yeas and nays being desired by one-fifth of the Sena- tors present, Those who voted in the affirmative are Messrs. Abbott, Ames, Boreman, Brownlow, Gilbert, Hamilton of Texas, McDonald^ Nye, Osbom, Pomeroy, Pool, Pratt, Ramsey, Rice, Steams, Stewart, Sumner, Thayer, -and Wilson. Those who voted in the negative are Messrs. Bayard, Blair, Buckingham, Carpenter, Casserly, Chandler, Conkling, Corbett, Cragin, Davis, Edmunds, Fenton, Flanagan, Fow- ler, Hamilton of Maryland, Hamlin, Harlan, Howard, Howe, Johnston, Kellogg, Mc- Creery, Morrill of Vermont, Patterson, Ross, Schurz, Sherman, Sprague, Stockton, Thur- man, Tipton, Trumbull, Vickers, Warner, Willey, and Williams. So the amendment was not agreed to. On motion by Mr. Stewart to amend the resolution by striking out the name " Joshua Hill" and inserting the name "Henry P. Farrow," After debate, On motion by Mr. Chandler (at 5 o'clock and 5 minutes p. m.), the Senate adjourned. [The debate is found on page 816 of the Congressional Globe, part 1, 3d seSs. 41st Cong., and on pages 817-830 in yaxt 2 of the same.] TuESDAT, January 31, 1871. The Senate resumed the consideration of the resolution reported by the Committee on the Judiciary, declaring Joshua Hill duly elected a Senator of the United States by the legislature of the State of Georgia and entitled to take his seat in tho Senate upon'taking the oaths required by the Constitution and lawa^ and Pending debate thereon, the following message was received, &c. [The debate is found on pages 848-851 [of the Congressional Globe, part 2, 3d sess. 41st Cong.] Wednesday, February 1, 1871. Mr. Trumbull submitted the following resolution for consideration: "Resolved, That H. V. M. Miller has been duly elected a Senator by the legislature of Georgia, for the term ending March 4, 1871." Mr. Stewart -submitted the following resolution for consideration: "Resolved, That Richard H. Whiteley i? entitled to take his seat in the Senate upon taking the oath prescribed by law." The Senate resumed the consideration of the resolution reported by the Committee on the Judiciary, declaring Joshua Hill to be duly elected a Senator of the United States, and entitled to take his seat upon taking the oaths prescribed by the Constitution and laws; and the question being upon the amendment proposed by Mr. Stewart, to strike out the name "Joshua Hill" and insert the name "Henry P. Farrow,", After debate, it was determined in the negative — ^yeas 19, nays 37. HILL AND MILLER, WHITELEV AND FAREOW. 311 On motion by Mr. Stewart, the yeaa and nays being desired by one-fifth of the Sena- tors present, Those who voted in the af&nnative are Messrs. Abbott, Ames, Boreman, Brownlow, Chandler, Gilbert, Hamilton of Texas, Nye, Osborn, Pomeroy, Pratt, Ramsey, Robert- son, Spencer, Stearns, Stewart, Sumner, Thayer, and Wilson. Those who voted in the negative are Messrs. Anthony, Bayard, Blair, Buckingham, Carpenter, Casserly, Conkling, Corbett, Cragin, Edmunds, Fenton, Flanagan, Fowler, Hamilton of Maryland, Hamlin, Harlan, Harris, Howard, Johnston, Kellogg, McCreery, MorriU of Vermont, Patterson, Ross, Saulsbury, Sawyer, Scott, Sherman, Spiague, Stockton, Thurman, Tipton, Trumbull, Vickers, Warner, WUley, and Williams. So the amendment of Mr. Stewart was not agreed to; and On the question to agree to the resolution reported by the Committee on the Judiciary, it was determined in the a^rmative. So it was Resolved, That Joshua Hill has been duly elected Senator of the United States by the legislature of the State of Georgia, and is entitled to take his seat on taking the oaths required by the Constitution and laws. Whereupon Mr. Hill apppeared, and the oaths prescribed bylaw having been administered to him by the Vice-President, hetook his seat in the Senate. [The debate is found on pages 871-874 of the Congressional Globe, part 2, 3d sess. 41st Cong.] Feiday, February 24, 1871. The Vice-President stated that the message of the President of the United States, just received, announced that he had approved and signed the "Joint resolution* prescrib- ing the oath to be taken by H. V. M. Miller, Senator-elect from the State of Georgia," and requested Mr. Miller, Senator-elect from the State of Georgia, whose credentials were presented on the 11th day of January, 1869, to come forward and take the oath of office. Whereupon Mr. Miller appeared, and the oaths prescribed by law were administered to him by the Vice-President, and he took his seat In the Senate. COMPENSATION OF SENATORS AND CONTESTANTS. Saturday, February 25, 1871. Mr. Trumbull submitted the following resolution; which was read, and passed to a second reading: '^Resolved, That the Secretary of the Senate be directed to pay to the Senators from the State of Georgia the compensation allowed by law, from the 29th day of July, 1868; and to H. P. Farrow and Richard H. Whiteley, contestants from the State of Georgia, compensation from the 16th day of February, 1870, the date of their election by the reorganized legislature of Georgia, to 30th day of January, 1871, when the Senate decided they were not entitled to seats. " Monday, February 27, 1871. On motion by Mr. Trumbull, the Senate proceeded to consider the resolution submit- ted by him on the 25th instant, directing the Secretary of the Senate to pay the Senators from the State of Georgia; and the resolution was agreed to. * The proceedings of the Senate relating to this joint resolution are omitted 312 SENATE ELECTION CASES. [Forty-fltst Congress — Second session.] H. R. BEVELS, Senator from Mississippi from February 25, 1870, till March 3, 1871. February 23, 1870, the credentials of Mr. Revels were presented. A resolution was submitted that they be referred to the Committee on the Judiciary with instructions to inquire whether he had been nine years a citizen of tlie ynited States, and whether the person certifying to his election was the governor of the State. Mr. Revels's credentials were signed by Adelbert Ames, brevet major- general United States Army, provisional governor of Mississippi. The act of July 25, 1S66, provided " that it shall be the duty of the governor of the State from which any Senator shall have been chosen as aforesaid to certify liis election" &c. It was contended that this was not such acertificate as was required by that act. It was also contended that Mr. Revels, being partly of African blood, had not been nine years a citizen of the United States ; that he was not a citizcil at birth, following tlie decision of the Dred Scott case ; that he became a citizen only on the ratification of the four- teenth amendment in 1868. After debate, the motipn to refer the credentials was determined in the negative, and Mr. Revels took the oath of office February 2a. Extracts from remarks given below. will show the grounds upon which certain Senators proceeded. The history of the case here given consists of a transcript of the proceedings of the Senate relating to it from .Senate Journal, 2d sess. 41st "Cong., with extracts from remarks of Messrs. Vickers ana Scott. Special references to the debates of each day, which are found in the Congressional Globe, part 2, 2d sess. 41st Cong., are inserted below. "Wednesday, February 23, 1870. Mr. Wilson presented the credentials of H. E. Eevels, elected a Senator by the legis- lature of the State of Mississippi for the unexpired portion of the term ending March 4, 1871; which were read. Mr. Wilson presented a. certified extract from the proceedings of the house of repre- sentatives of the State of Mississipni, also a certified extract from the proceedings of the senate and house of representatives' of the State of Mississippi, relative to the election of H. E. Eevels as a Senator in Congress; which were read. Mr. Saulsbury objected to the reception of the credentials; and After debate, the Vice-President submitted ihe question to the Senate: Shall the credentials be received? It was determined in the aflirmative. Whereupon Mr. Stockton submitted the following resolution: ' ' Besolved, That the credentials of Hiram E. Eevels, who is now claiming a seat in this body as a Senator-elect from the State of Mississippi, be referred to the Committee on the Judiciary, who are hereby requested to inquire and report whether he has been a citizen of the United States for the period of nine years, and was an inhabitant of the said State at the time of his alleged election in the sense intended by the third section of the first article of the Constitution of the United States, and whether Adelbert Ames, brevet major-general and provisional governor of Mississippi, as appears by the creden- tials, was the governor of the State of Mississippi at the time, and whether he was an inhabitant of the said State. ' ' On the question to agree to the resolution of Mr. Stockton, After debate, On motion by Mr. Thayer (at 5 o'clock), the Senate adjourned. [The debate is found on pages 1503-1514 of the Congressional Globe referred to in the head-note.] Thursday, February 24, 1870. The Senate resumed the consideration of the motion to refer the credentials of H. E. Eevels, elected a Senator by the legislature of the State of Mississippi for the unexpired portion of the term ending March 4, 1871, with certain instructions; and After debate, the Senate adjourned.' [The debate is found on pages 1542-1544 of the Congressional Globe referred to i^ the head-note. Mr. Saulsbury's speech is found on pages 125-130 of the Congressional Globe, part 7, Appendix, 2d sess. 41st Cong.] Friday, February 25, 1870. The Senate resumed the consideration of the motion of Mr. Stockton to refer the cre- dentials of H. R. Eevels, elected a Senator by thelegislature of the State of Mississippi for the unexpired portion of the term ending March 4, 1871, to the Committee on the Judi- ciary, with instructions to inquire and report whether he has been a citizen of the United States for the period of nine years, and was an inhabitant of the said State at the time of his alleged election in the sense intended by the third section of the first article of H. R. REVELS. 313 the Constitution of the United States; and whether Adelhert Ames, brevet major-gen- eral and provisional governor of Mississippi, as appears by the credentials, ■was the gov- ernor of the State of Mississippi at the time, and whether he-was an inhabitant of the said State; and After debate, on the question to agree to the motion, it was determined in the nega- tive — ^yeas 8, nays 48. On motion by Mr. Pomeroy, the yeas and nays being desired by one-fifth of the Sen- ators present, Those who voted in the af&rmative are Messrs. Bayard, Casserly, Davis, Hamilton, McCreery, Sanlsbury, Stockton, and Vickers. Those who voted in the negative are Messrs. Abbott, Anthony, Boreman, Brownlow, Buckingham, Cameron, Carpenter, Chandler, Cole, Conkling, Corbett, Drake, Fenton, Ferry, Fowler, Gilbert, Haralin, Harlan, Harris, Howe, Howell, Kellogg, Lewis, Mc- Donald, Morrill of Maine, Morrill of Vermont, Nye, Osborn, Pomeroy, Pool, Pratt, Ramsey, Rice, Robertson, Ross, Sawyer, Schurz, Scott, Sherman, Spencer, Stewart, Sumner, Thayer, Tipton, Trumbull, Willey, Williams, and Wilson. So the motion was not agreed to. On motion by Mr. Wilson, that the oaths prescribed by law be now administered to Mr. Revels, it was determined in the aiBrmative — yeas 48, nays 8. On motion by Mr. Pomeroy, the yeas and nays bding desired by one-fifth of the Sen- ators present. Those who voted in the affirmative are Messrs. Abbott, Anthony, Boreman, Brownlow, Buckingham, Cameron, Carpenter, Chandler, Cole, Conkling, Corbett, Drake, Fenton, Ferry, Fowler, Gilbert, Hamlin, Harlan, Harris, Howe, Howell, Kellogg, Lewis, Mc- Donald, Morrill of Maine, Morrill of Vermont, |^ye, Osborn, Pomeroy, Pool, Pratt, Ramsey, Rice, Robertson, Ross, Sawyer, Schurz, Scott, Sherman, Spencer, Stewart, Sumner, Thayer, Tipton, Trumbull, Willey, Williams, and Wilson. Those who voted in the negative are Messrs. Bayard, Casserly, Davis, Hamilton, McCreery, Saulsbury, Stockton, and Vickers. So the motion was agreed to; and The oaths prescribed by law were administered to Mr. Revels by the Vice-President, and he took his seat in the Senate. [The debate is found on pages 1557-1568 of the Congressional Globe referred to in the head-note.] [Extract from remarks of Mr. Vickers, of Maryland, in support of the resolution submitted by Mr. Stockton. Delivered in the Senate February 25, 1870, and found on pages lo!)?, 1558, and 1560 of tl>e Coi ,,-ressional Globe referred to in the head-note.] -' . "The subject before the Senate is one which relates to the eligibility of an individual elected to this body. That question involves the three qualifications which the Consti- tution of the country requires of persons before they can take a seat in this Assembly: the first, that theyshall have been citizens of the United States fornine years; secondly, that they shall be inhabitants of the State from which they are elected; and thirdly, that they shall be of the age of thirty years. " Now, the question of reference to the Committee on the Judiciary includes all three inquiries, whether this party is thirty years of age, is a legal inhabitant of the State of Mississippi, and has been a citizen of the United States for nine consecutive years. I do not propose to dwell upon any of these propositions except theone of citizenship; and the question for the Senate to consider is whether he has been a citizen of the United States for nine years. That is the point which I wish to present to and impress upon the judgment of the Senate. . " I shall rely mainly on the judgment of the Supreme Court of the United States in the case of Scott vs. Sandford, which has been referred to, and upon the opinion deliv- ered by Chief- Justice Taney on behalf of a large majority of that court. " I knowthat decision hasi been denounced not only in the Senate but in the country, but it stands unrepealed, and is the adjudicated law of the land. Chief- Justice Taney was in social life one of the most exemplary of men. His private character was pure and unsullied. He was honest, just, and faithful. He performed all the duttes of private, social, and public life with that fidelity and correctness which we should expect from a man so virtuous and exalted. There has never been a blemish, upon his private or his public life. I believe, although I am not fully qualified to say, that he was not a slave- holder. I think he was not, and I am sure that I am justisfied in saying that after he was placed upon the bench he separated himself from the politics of the country and never exercised the right of suffrage. His ambition was to make an upright, able, and impartial judge, and he entered and left public of&ce with as clean hands as any man that ever lived in this country. He entered it poor and he left it in the same condition, and bequeathed as a heritage to his family a high, pure, and exalted reputation. " So much for the character of the j udge. Now, what was that opinion ? It was upon a case which involved the citizenship of a' suitor in the courts of the United States. The Centititution gave jurisdiction to those courts between parties who are citizens of differ- 314 .SENATE ELECTION CASES. ent States. The very question presented to the consideration of the court was -whether the parties plaintiff, Dred Scott and others, were citizens of the United States within the constitutional intendment. To show that the court desired nothing but impartial justice, the case was ably argued twice at different terms, in order that the most thorough examination, discussion, and deliberation might be had on a matter of such magnitude. And what, under the circumstances, was the duty of the court? It was to decide whether the parties plaintitt were citizens according to the Constitution. That was in- cumbent upon them, aiul there was no alternative. This necessarily brought up to the attention and consideration of the court the condition of the parties. They were of Afri- can descent, and the question naturally arose, and it was so argued, are they citizens of the United States and qualified to sue in its courts? A large ina,jority of the court de- cided that they were not citizens of the United States. "I did not suppose that any one would have found fault with the court for the per- formance of this duty. They were bound to decide according to their convictions; but the complaint was, as was stated by the Senator from Delaware yesterday, that they departed from this question and went into an argument upon the condition of this class of people and the right of masters to take them into the Territories of the United States. We all know that there was great excitement in the country at that period in reference to the constitutional right of a master to take his slaves north of the Missouri line of 36° 30'. Some of these parties had been taken by their owners north of the Missouri line into what was called free territory, and this feet necessarily brought to the consideration and examination of the court the question whether the owner of a slave had a right to take him into a Territory of the United States. "That decision, I know, has been animadverted upon here as it has been elsewhere. But have not other decisions been condemned? Was not that upon the fugitiveslave law severely criticised in the country, and probably in Congress, too, by the Freesoilers? The senior Senator from Massachusetts [Mr; Sumner] said in reference to it that he did not feel hound to sustain that law after the Supreme Court had decided, in favor of its constitutionality; and yet that decision was made by a unanimous court. There was perfect unanimity upon the question of its constitutionality. ' ' But I have waited with anxiety to hear a refutation of any single position which the Supreme Court took in the decision of the Dred Scott case. I know it is easy to censure a decision and get up a political clamor against it, but I want to knowif any single posi- tion of fact orof law which that court announced has ever been successfully controverted. I have not heard it attempted iu the Senate of the United States! I have not heard a single argument against the correctness of the legal positions or to any statement of fact asserted by the court. "And now, when a case has been so solemnly adjudicated by a court forming one of the co-ordinate branches of the Government, and whose duty it is to determine grave constitutional questions, I ask if any reason can be assigned against the decision of that case or any of the principles involved in it? Denunciation should be disregarded by an intelligent people while the principles of the opinion stand unassailed and irrel'ragable. " What were some of the propositions of law decided by that tribunal? " 1. That when the Constitution was adopted persons of African descent were not re- garded in any of the States as members of the community which constituted the States, and were not numbered among its people or citizens; consequently, the special rights and immunities guaranteed to citizens did not apply to them. " 2. That no State could by any subsequent law make a foreigner or any other descrip- tion of persons citizens of the United States. ' ' 3. That a State might by its laws put a foreigner, or any other description of persons, upon a footing with its own citizens; but that would not make him a citizen of the United States, nor entitle him to sue in its coui»ts, nor to any of the privileges and im- munities of a citizen in another State. " The disqualification of the African race was as radical, fundamental, and perfect as languagecould make it. This is by a co-ordinate department of the Government, existing by the ^ame Constitution as Congress; in its origin, design, and objects as thoroughly constitutional^ in its powers and jurisdiction superior, because State and national legis- Is^tion is measured and limited by the Constitution according to its judgment. Its decis- ions and decrees are as binding as the Constitution itself." » « . * * * * » "I suppose there is not a Senator on this floor who voted either for the civil rights bill or for the submission of the constitutional amendment to the States but what be- lieved it was absolutely necessary and indispensable to make these people citizens of the United States; without the passage of that bill in the opinion of some, and without the passage and adoption of the constitutional amendment in the opinion of others, they would not have been citizens of the United States. After the civil rights bill was passed and when it passed there were serious objections to it. It was doubtful' in the minds of many whether grants by legislative enactment coulc make a citizen of the 11. K. REVELS. 315 United States; whether it did not require a constitutional amendment to, make them such; and the better opinion was that it did require it, because by the Constitution they were not made citizens. You proceeded on the very ground that it was absolutely requi- site that the amendment should be made which made the party ijow claiming his seat a citizen of the United States from the time of its approval only; from that time he became a citizen; and as nine years havenot elapsed, how can we, upon our oaths and in view of the decisions of the Supreme. Court, the practice of the Government, the decisions of all the State courts, the.opinions of the Attorneys- General, say that in our opinion he was a citizen of the United States before the passage of the civil rights bill or of the fourteenth constitutional amendment? " This is not a political but a judicial question, and ought to be decided by ns as judges and not as politicians. In the Dred Scott case the Supreme Court said — " 'That, looking tp the contemporaneous history and to the contemporaneous legisla- tion of the several States at the time the Constitution was adopted, the use of the word " citizen," as employed in that Constitution, was to exclude the African and every race but the white.' "The court looked into the construction of this provision. They took a deliberate view of the contemporaneous history of the States and the condition of the country at the time. This was proper and necessary to a full understanding of the subject. In a debate which took place in the Senate of the United States on the 7th of February, 1866, the senior Senator from Massachusetts [Mr. Sumner] assumed the ground that no State had a republican government that tolerated slavery; and it was in reference to that that the late Mr. Fessenden, who was so distinguished in this body, as he was in every pub- . lie station which he occupied, said in reply : ' " I ask the question that he may answer it, because after all he will admit, as a lawyer, as we all must, that in cotistruing a constitution, and construing a statute, and construing any provision, we look at contemporaneous history in the first place, and we look more particularly, when endeavoring to find out what the sense of an instrument is, at all its clauses in order to get themeaning of all, for one explains the other. It would seem to me that the Senator went a little too far with his argument as to the guarantee clause.' "The opinion of Mr. Fessenden was that in construing the Constitution we must look at the contemporaneous history of the country. The Senator from Oregon [Mr. Williams] said yesterday that the decision in the Dred Scott case applied only to per- sons of African descent who.se ancestors had been sold into slavery. Now, I ask how came that race among ns? Is it not a historical fact that they were brought here and sold; that they were made articles of traffic; that they did not come here of their own accord; and that from those people have descended the whole ofthat class of population among us? They were denied naturalization. In the. States where slavery existed the courts held that color, whether of the dark, mulatto, or mixed, was presumptive evidence of slavery, and the onus of proving- emancipation or freedom rested upon the person. The courts of the United States always follow the decisions of State courts in matters local or affecting the relations or peculiar interests existing in them. If this subject shall be referred to a committee, there will be no difficulty in proving the race to which the claimant belongs, if appearances should not satisfy the most fastidious. The colonists coming from the bosom of Europe necessarily brought -with them, to some extent, the feelings and sentiments of the nations toward this class of persons. The court, in reviewing the facts and the history of the condition of this people in the case alluded to, said that they did not migrate to America; and— " ' It is difficult at this day to realize the state of public opinion in relation to that unfortunate race which prevailed in the civilized and enlightened portions of the world at the time of the Declaration of Independence, and when the Constitution of the United States was framed and adopted. But the , public history of every European nation displays it in a manner too plain to be mistaken. " 'They had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior that they had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his ben- efit. He was bought and sold, and treated as an ordinary article of merchandise and traffic whenever a profit could be made by it. This opinion was at that time fixed and universal in the civilized portion of the white race.' " TExtract from remarks of Mr. Scott, of Pennsylvania, in opposition to the resolution submitted by Mr. Stockton. Delivered in the Senate February 25, 1870, and found on page 1565 of the Congres- sional Globe referred to in the head-note.] " The proposal is to refer his credentials to the Judiciary Committee for the purpose of making inquiry as to whether he has been a citizen of the United States .for nine, years. It is admitted that h s is a citizen now, and therefore he is admissible as a Sena- tor unless there be some disqualification. What is that disqualification? It is alleged 316 SEN ATK liLECTlOI^ CASES. that lie is a man of color, and that therefore he was not a citizen prior to the enactment of the civil rights bill. Now, sir, no one stands here to question that his citizenship was an open question before the adoption of the civil rights bill. The history of the litigation that had occurred in various States, and that finally got into the Supreme Court of the United States in the Dred Scott case, is enough to show that a question was made as to whether a colored man was or was not a citizen of the United States. The decisions in Kentucky, the decisions in Connecticut, the decisions in my own State, the discussion which took place upon the admission of Missouri into the Union, the Dred Scott case, the universal discussion of this question at one period in our history — these are enough to show that the public mind was not settled upon the question. But if it was not settled then, could it be more effectively settled than it has been, first by the passage of the civil rights bill, and then, if that was not sufficent as a mere act of Con- gress to determine the status of citizenship in the tace of a decision of the Supreme Court, surely it will not be contended that the fourteenth constitutional amendment, declaring that all persons bom vfithin the United States are citizens, is not sufficient to settle it. "The civil rights bill, if its text be turned to, and the fourteenth amendment, if its text be turned to, will be found to be both declaratory. They do not enact that ' from henceforth all persons born within the United States shall be citizens,' but the present tense is used in both: 'all persons' ' are citizens of the United States. ' If that be suffi- cient to settle the question, if that be enough as a declaratory law to declare that all persons born within the limits of the United States are citizens of the United States, where does this man stand who now presents himself as Senator-elect from Mississippi? " It is urged by gentlemen on the other side that he became a citizen only by virtue of one or the other of these enactments; butif they turn to the history of that clause of the Constitution of the United States on which they rely they will find that it was in- serted botb in reference to Senators and to Representatives in theothei; House of Congress, and also in reference to the President, becauseof the apprehension that was felt of foreign influences in our Government. In the discussion which occurred in the convention — I have it here, but will not take the time of the Senate to read it — on fixing the qualifica- tions of Senators it was especially dwelt upon tha,t the Senate being the body which was to pass upon treaties with foreign governments, it was particularly necessary that the period of citizenship should be extended and made longer for a Senator than tor a mem- ber of the House of Representatives. The discussion of Mr. Madison in the Federalist of this clause shows that the purpose, the reason, the intention of this clause in the Constitution of the United States was that persons who had been born abroad should not be permitted to become Senators until after they had been .citizens a certain length of time. That is the reason, that is the spirit of the law; and it is'a maxim which I need not quote, that the reason ceasing the law ceases with it. " Here, then, is a man bom in the United States, not an alien, not a foreigner, who comes here elected by a State legislature. No question is raised as to his qualification as to age; no question is raised as to his qualification in any other respect than as to whether he has been a citizen of the United States for nine years. Now, even if the doctrine contended for by the gentlemen on the other side were true, that he was not "a citizen until the time of the passage of the civil rights bill or until the adoption of the fourteenth constitutional amendment, still he is not within the meaning of that clause of the Constitution which requires a man to be a citizen for nine years. The meaning, the spirit of that was, that no man should oojupy this place who had been naturalized as a ibreigner until nine years had elapsed alter his naturalization." ADELDERT AHES. 317 [Forty-first Congress- Second session.] ADELBERT AMES, Senator from Mississippi from April 1, 1870, till he resigned in 1874. January IS, 1870, Mr. Ames was elected to fill the vacancy in the term beginning March 4, 1869. February 25, 1870, the credentials were presented and referred to the Committee on the Judiciary. March IS, the committee reported the 'following facts: Mr. Ames wa-s born in Maine, in 1833, wliere he , resided with his parents until 1856. when he entered West Point. Cmtinuing in the military service, he was ordered to Missis^^ippi in 1868. June 15, of that year he became provisional governor by ap- pointment of General McDowell, then district commander, and in March, 1869, he became himself district commander by assignmentof the President. These two positions Mr. Ames waa holding i-t the time of the election. Mr. Ames testified that shortly before the election, being then in Missis- sippi, he determined to be a candidate and deci'dcd to remain and reside in Mississippi, and pub- licly declared that intention. After his election he resigned his coiumission, - This, he states, was ' after the passage (February 17,1870), but before the approval (February 23, 1870) of the bill dcclarin;^ Mississippi entitled to representation in Congress, Mr. Ames's parents had continued to live in Maine until 1862, and some of his papers and effects remained at his father's house. In 1S62 his parents i-emoved to Minnesota, carrying with them the eifects of their son in their possession. In subsequent years Mr. Ames occasionally visited Maine, but owned no land there and occupied no habitation there of his own. The committee reported that Mr. Ames was not, when elected, an in- habitant of that State for which he was chosen, within the meaning of the third clause of the third section of the first article of the Constitution. They reported the resolution "that Adelbert Ames is not eligible to the seat in the Senate of the United States to which he had been appointed."' After long debate the Senate resolved, April 1, 1870, that he was eligible to the seat, and he took the oath of office. The history of the case here given consists of a transcript of the proceedings of the Senate relating to it from Senate Journal, 2d sess. 41st Cong., and the report of the committee from Senate Reports, 2d sess. 41st Cong., No. 75. Special references to the debates of each day, which are found in the Congressional Globe, part 3, 2d sess. 41st Cong,, are inserted belo^v. Fkiday, Februarji 25, 1870. Mr. Robertson presented the credentials of Adelbert Ames, elected a Senator in Con- gress by the legislature of the State of Mississippi for the unexpired portion of the term commencing on the 4th day of March, 1869; which were referred to the Committee on the Judiciary. Fkiday, March 18, 1870. Mr. Conkling, from the Committee on the Judiciary, to whom were referred the cre- dentials of Adelbert Ames, elected a Senator by the legislature of the State of Mississippi for the unexpired term ending the 4th day of March, 1875, submitted a report (No. 75) thereon, accompanied by the following reaolntion. [Resolution found at end of report. ] BEPORT OF COMMITTEE. [The committee consisted of Messrs Trumbull (chairman), Stewart, Edmunds, Conk- ling, Rice, Carpenter, and Thurman.] In THE Senate of the United States. Maech 18, 1870. — Ordered to be printed. Mr. Conkling, from the Committee on the Judiciary, submitted the following report: The Committee on the Judiciary, to whom were referred the credentials of Adelbert Ames, claiming to be Senator-elect from the State of Mississippi, report the following facts and conclusions: Mr. Ames was boru in Maine in 1835, and resided with his parents in that State until 1856, when he entered the Military Academy at West Point. . From 1856 he remained' in the military service of the United States until he resigned his commission, which he states was after the passage, but before the approval by the President, of the bill finally declaring Mississippi entitled to representation in Congress. Until 1862 his parents continued to reside in Maine, and such articles and papers of his as would naturally be kept at his home remained at his lather's hou.se. In 1862 his parents removed to Minnesota, carrying with them the effects of their son in their pos- session, and in subsequent years he occasionally revisited Maine, but evened po land and occupied no bs^bitatiojj there of his owfl. 318 SENATE ELECTION CASES. In 1868 he was ordered to Mississippi; on the 15th of June in that year he became provisional governor by appointment of General McDowell, then distriet commander, and in March, 1869, he became himself district commander by assignment of the Presi- dent of the United States. These relations continued modified, if modified at all, only as will presently appear. The election seems to have been regular, and waiving any criticism of the form of the certificate, no question has been made touching the right of Mr. Ames to take his seat, except in regard to the legal character of his residence in Mississippi. The provision of the Constitution of the United States under which the question arises is this: ' ' No person shall be a Senator who shall not have attained to the age of thirty years, and been nine years a citizen of the United States, and who shall not, when elected, be an inhabitant of that State for which he shall be chosen. ' ' It will be seen that to be eligible as a Senator of the Utiited States, a person, in addi- tion to other qualifications, must be an inhabitant of the State for which he is chosen, and he must be such an inhabitant "when elected." The election in this instance occurred on the 18th day of January, 1870. At this time Mr. Ames was a military officer, stationed in Mississippi by order of superior military authority, and acting as provisional governor by appointment frwn General McDowell, as already stated. His presence in these two characters comprises everything bearing upon the question of his residence in Mississippi down to the time when he became a candidate for the Senate. The precise date cannot be fixed, but not long before the election General Ames determined to allow his name to be submitted to the legislature as one of those from which the choice of Senators might be made. Having reached this determination, and in connection with it, General Ames declared, a=i far as he did declare it, his intention in regard to his future residence. His language as delivered to the committee touching his declarations and acts is as follows: ' ' Upon the success of the Eepublican ticket in Mississippi I was repeatedly approached to become a candidate for the United States Senate. For a long time I declined — I wrote letters declining. A number of persons - in Mississippi visited this city to find arguments by which I might be influenced to become a candidate. I hesitated because it would necessitate the abandonment of my whole military life. Finally, for personal and public reasons, I decided to become a candidate and leave the Army. My intentions were pablioly declared and sincere. (The intentions thus declared were not only to become a candidate for the Senate, but to remain and reside in Mississippi.) I even made arrangements, almost final and permanent, with a person to manage property JC intended to buy. This was before I left Mississippi. My resignation was accepted by the President'before he signed the bill to admit the State." The conclusion of the committee upon these facts is that General Ames was not, when - elected, an inhabitant of the State for which he was chosen, and that he is not entitled to take, his seat. The committee therefore recommend the adoption of the follovring resolution: Resolved, That Adelbert Ames is not eligible to the seat in the Senate of the^ United States to which he has been appointed. MoiSTDAY, March 21, 1870. [A motion was made by Mr. Morton that the Senate proceed to the consideration of the resolution reported by the committee. After debate, the motion was withdrawn. The debate is found on pages 2087, 2088 of the Congressional Globe referred to in the head-note. This jnotion does not appear in the Senate Journal.] Tuesday, March 22, 1870. The Senate proceeded to consider the resolution reported by Mr. Conkling from the Committee on the Judiciary on the credentials of Adelbert Ames, claiming to be a Senator-elect from the State of Mississippi, viz: "Resolved, That Adelbert Ames is not eligible to the seat in the Senate of the United States to which he has been appointed. ' ' ■ After debate. On motion by Mr. Hamlin, the Senate adjourned. [The debate is found on pages 2122, 2123, 2125-2135 of the Congressional Globe re- ferred to m the head-note.] ™ o ^. , „ , Wednesday, March 23,. 1870. The Senate resumed, &c., and After debate. On motion by Mr. Thurman (at five minutes before 5 o'clock p. m.) that the Senate adjourn, it was determined in the affirmative— yeas 28, nays 25. [The debate is found on pages 2156-8169 of the Congressional Globe referred to in the head-note.] The Senate resumed, &c. [No debate took place.] , The Senate resumed, &of Senators should be commenced and continued till the elections were efiected, and that this legislature bad acted in conformity therewith. They recommended the adoption of a resolution that Abijah Gilbert was duly elected and entitled to hold the seat, which was agreed to without a division April 28, 1870. Mr. Hart was allowed mileage and compensation. The history of the ease here givenConsistsof a transcript of the proceedings of the Senate relating to it. from Senate Journal, 2d sess. 41st Cong., and the report of the committee from Senate Reports, 2d sess. 41st Cong., No. 101. ^tpecial references to the debates, which are found in parts 3 and 4 of the Congressional Globe,2d sess. 4ist Cong., are inserted below. Feiday, April 1, 1870. Mr. Osborn presented the petition* of Ossian B. Hart, of Florida, claiming to be en- titled to a seat in the Senate as a Senator duly elected by the legislature of the State of Florida, and asking that his claim to said seat may be investigated by the Senate; ■whiclj was referred to the Committee on the Judiciary aiid ordered to be printed. [Remarks accompauyiDg the presentation of the petition are found on pages 2330, 2331 of part 3 of the Congressional Globe referred to in the head-note.] Wednesday, April 13, 1870. Mr. TriiinbuU, from the Committee on the Judiciary, to whom was referred the peti- tion of O.ssiim B. Hart, claiming to be entitled- to the seat in the Senate now held by the Hon. Abijah Gilbert, as a Senator in Cojigress from the State of Florida, submitted a report (No. 101), accompanied by the following resolution. [Resolution found at end of report.] EEPOET OF COMMITTEE. [The committee consisted of Messrs. Trumbull (chairman), Stewart, Edmunds, Conk- ling, Rice, Carpenter, and Thurman.] In THE Senate of the United STATEa. Apeil 13, 1870. — Ordered to be printed. Mr. Trumbull, from the Committee on the Judiciary, submitted the following report: The Committee on the Judiciary, to whom was referred the petition of Ossian B. Hart, of Florida, claiming a seat in the Senate from the State of Florida for the term which commenced March 4, 1869, report as follows: In consequence of the rebellion the State of Florida was withoiit representation in the • f pqp^ in Senate Miscellaneous, 2d sess, 4}st Con^., Xo. 102, HART VS. GILBERT. 321 Senate of the United States from 1861 till 1868. In pursuance of a constitution framed and adopted under what are known as the reconstruction acts, a legislature convened in Florida, Monday, June 8, 1868, the members of the assembly and half of the senate having been elected for two years, and the other half of the senate for four years. This legislature, on the 16th day of June, 1868, being the second Tuesday after its meeting and organisation, proceeded in accordance with the act of Congress of July 25, 1866, "regulating the times and manner of holding elections for Senators in Congress," to take action for the election of two United States Senators to fill the then existing vacancies for the terms expiring on the 3d of March, 1869, and the 3d of March, 1873. On Wednesday, the day following that on which each house had separately but without result voted for Senators to fill the two existing vacancies, the members of the two houses convened in joint assembly, elected a Senator to flUthe vacancy expiring March 3, 1869, and adjourned till the nejft day, when they again assembled and elected a Sen- ator for the term expiring March 3, 1873, and adjourned without date. The next day (Friday) the members of the two houses, each house having previously concurred in a resolution to that effect, assembled again in joint convention for the elec- tion of a Senator to succeed the one whose term would expire on the 3d of March, 1869, when Abijah Gilbert, the present sitting member, was elected. The petitioner was chosen by the same legislature in January, 1870, to represent the State in the Senate for the term commencing March 4, 1869, and now claims the seat occupied by Mr. Gilbert. The elections of 1868 all took place before ihe passage of the act of June 25, 1868, which declared Florida entitled to representation in Congress. Two objections are taken to the election of the ■sitting member: 1. That he was chosen by the legislature of a State not at the time recognized as en- titled to representation in Congress. 2. That he was not elected in conformity with the, act of July 25, 1866. The first objection is answered by the fact that the subsequent recognition of the State as entitled to representation under the Constitution, in pursuance of which the legislature was elected and organized, related back to and made valid its acts from the time of its organization. Senators and Representatives fromseveral of the reconstructed States have been chosen before the States were declared entitled to representation,, and no one has ever questioned their right to seats when Congress subsequently recognized the government under which they were chosen as entitled to representation. The only ground for the other objection arises from the fact that the legislature failed to take action on the "second Tuesday after its organization" in regard' to the third Senator who was to be elected, but it took action on the subject of electing Senators, and actually voted, though unsuccessfully, on that day for persons to fill the two existing vacancies. The object of the act of Congress was to insure the election of Senators by the proper " legislature, and to fix a time when proceedings for that purpose should be commenced and continued till the elections were efiected. , The legislature by which the sitting member was elected was the one chosen next preceding the term which would commence on the 4th of March, 1869, and was, there- fore, the proper legislature to elect. "The second Tuesday after the meeting and organ- ization of the legislature " was, the time prescribed by the act of Congress for initiating the election of Senators, and that was the time when the legislature proceeded to that business. There being three Senators to elect, it took action on that day only in refer- ence to two of them. Did its failure to take action on that day, and the two subsequent days (which -were occupied in electing the first two Senators), in reference to the third Senator, render his election, in all other respects regular, invalid? The committee think not. The language of the law is: "In case no person shall receive such majority on the first day, the joint assembly shall meet at 12 o'clock, meridian, of each succeeding day during the session of the legislature, and take at least one vote till a Senator shall be elected." No formal adjournment from day to day by vote of the joint assembly was necessary, but it was the duty of the members of each house to meet in joint assembly at noon of each day and vote at least once till all the Senators whom the legislature ha^ the right to elect were chosen. This is exactly what the legislature did. In no view which the committee can take would the petitioner be entitled to a seat in the Senate, for if the election of the sitting Senator was irregular, that of the peti- tioner by the same legislature at a subsequent session, was equally so. The' committee recommend for adoption the following resolution: Besolved, That Abijah Gilbert was duly elected a Senator from the Sta t« of Florida fo? the term commencing March 4, 1869, and is entitled to hold his seat as such. S E C -21 322 SENATE ELECTION CASES. Peiday, Apnl 15, 1B70. Mr. Trumbull presented the memorial* of Ossian B. Hart, praying tliat he may be allowed to be heard in argument before the Senate in support of his claim to a seat in the Senate as a Senator duly elected by the legislature of the State of 'Florida. Otdered, That it lie on the table. ' [The debate is found on pages 2705, 2706 of part 3 of the Congressional Globe referred to in the head-note.] Thuesday, April 28, 1870. On motion by Mr. Trumbull, the Senate proceeded to consider the resolution reported from the Committee on the Judiciary, declaring that Abijah Gilbert was duly elected a Senator from the State of Florida for the term commencing March 4, 1869, and is entitled to hold his seat as such; and the resolution was agreed to. [The debate is found on pages 3053, 3054 of part 4 of the Congressional Globe referred to in the head-note. ] Monday, May 2, 1870. Mr. Howe submitted the followiiSg resolution; which was read the first and second times, by unanimous consent, and referred to the Committee to Audit and Control the Contingent Expenses of the Senate: "Besolved, That the Secretary of the Senate be directed to pay out of the contingent ftind of the Senate to O. B. Hart, claimant of a seat in the Senate from the State of Flor- ida, the usual mileage of a Senator and the monthly pay from the date of presenting his credentials until the passage of the resolution declaring him not entitled to a seat." Tuesday, May 10, 1870. Mr. Ferry, from the Committee to Audit and Control the Contingent Expenses of the Senate, to whom was referred the resolution of May 2, 1870, to pay O. B. Hart the usual nnleage of a Senator for one session and pay from the date of presenting his credentials until the passage of the resolution declaring him not entitled to a seat, reported it with- out amendment. Wednesday, May 11, 1870. The Senate proceeded to consider, as in Committee of the Whole, the resolution to pay O. B. Hart the usual mileage of a Senator for one session and the monthly pay of a Sen- ator from the date of presenting his credentials until the adoption of the resolution by the Senate declaring him not entitled to a seat in the Senate of the United States as a Senator from the State of Florida; and no amendment being made, it was reported tothe Senate. Ordered, That it be engrossed and read the third time. The said resolution was read the third time. Evolved, That it pass. * Fonnd on page 2705 of part 3 of the Congressional Globe referred to in the head-note. EEYNOLDS VS. HAMILTON. 323 [Forty-second Congress — First session.] JOSEPH J. EEYNOLDS vs. MOEGAN 0. HAMILTON, of Texas. July 13, 1870, the credentials of Mr. Hamilton, elected for the term beginning March 4, 1871, were presented. March 3, 1871, the credentials of Mr. Reynolds, elected for the same term, were presented. March 4, both credentials were referred to the Committee on Privileges and Elections. The facts in regard to the elections were as follows : Texas had been without representation in Congress from 1861 to 1870. After the passage of the several acts for the reconstruction of Texas, but before the pas- sage of the act declaring her entitled to representation in Congress, the legislature of Texas, in Feb- ruary, 1870, proceeded, in accordance with the act of Congress of July 25, 1866, "regulating the times and manner of holding elections for Senators in Congress," to the election of Senators to fill vacan- cies in the terms ending March 3, 1871, and March 3, 1875. At the same time the legislature elected Mr. Hamilton for the term beginning March 4, 1871. The Senators elected tolfill the vacancies were ad- mitted to their seats. By the constitution of Texa.s there was another session of the same legislature after the eliections referred to, and before March 4, 1871. The legislature at this second session passed a resolution declaring the election of Mr. Hamilton illegal, and on the second Tuesday alter its • organization elected Mr. Reynolds. Mr. Reynolds claimed the seat on the ground that the election of Mr. Hamilton was void, because he had been elected before the passage of the act declaring Texas entitled to representation, and because there was another session of the legislature after the election of Mr. Hamilton, and before the commencement of the term for which he was elected. March 18, the committee reported the facts as above, and the conclusions that the case was precisely like that of Hart and Gilbert {see page320) : that the election of Mr. Hamilton had been in accordance with the act referred to, .which declares that the legislature of each State which shall be chosen next preceding the expiration of the time for which any Senator was elected to represent said State In Congress shall, on the second Tuesday after the meeting and organization thereof, proceed to elect a Senator," &c. ; and that the subsequent recognition of the State government of Texas had made valid , by relation, its acts from the time of its organization, so that the fact that the State was not admitted to i*epresentation when Mr. Hamilton was elected was immaterial. They recom- mended that Mr. Hamilton be admitted to his seat. He was admitted without debate. - ; The history of the case here given consistsof a transcript of the proceedings of the Senate relating to it from Senate Journals, 41st Cong, and 1st sess. 42d Cong. ; and the report of the committee from Senate Reports, 1st sess. 42d Cong., No. 2. There were no debates. [Forty-first Congress.] Wednesday, July 13, 1870. Mr. Nye presented the credentials of Morgan C. Hamilton, elected a Senator in Con- gress by the legislature of the State of Texas for the term of six years commencing on the 4th day of March, 1871. The credentials were read. Ordered, That they lie on the table. Friday, March 3, 1871. Mr. Morton presented the credentials of Joseph J. Reynolds, elected a Senator in Con- gress by the legislature of the State of Texas for the term of six years commencing on the 4th day of March, 1871. The credentials were read. [First session of the Forty-second Congress.] Saturday, March 4, 1871. Mr. Flanagan here submitted a motion that the oaths prescribed by law be adminis- tered by the Vice-President to Morgan C. Hamilton, whose credentials as Senator-elect from the State of Texas were presented on the 13th of July, 1870. Mr. Morton presented a certified copy of a joint resolution of the legislature of the State of Texas, approved January 26, 1871, providing for the election of a United States Senator from that State on the 24th day of January, 1871, for the term of six years com- mencing on the 4th day of March, 1871, and declaring the election of Morgan C. Ham- ilton, on the 22d of February, 1870, as Senator for said term, illegal; which was read. On motion by Mr. Morton, Ordered, That the resolution of the legislature of the State of Texas and the creden- tials of Mr. Morgan C. Hamilton and Mr. Joseph J. Eeynolds lie on the table. 324 SENATE ELECTION CASES. Monday, MarcU 13, 1871. On motion by Mr. Anthony, Ordered, That the credentials of Joseph J, Reynolds, and the credentials of Morgan C. Hamilton, with the resolution of the legislature of Texas, declaring the election of said Hamilton on the 22d of February, 1870, as Senator from that State for six years from March 4, 1871; illegal, be referred to the Committee on Privileges and Elections. Wednesday, March 15, 1871. The Tice-President laid before the Senate the credentials of J. J. Reynolds, elected a Senator in Congress by the legislature of the State of Texas for the term of six years, commencing on the 4th day of March, 1871. The credentials were read. ' [The letter accompanying the credentials states that inadvertently the governor had not signed the credentials presented March 3.] Saturday, March 18, 1871. Mr. Stewart, from the Committee on Privileges and Elections, to whom was referred the credentials of Morgan C. Hamilton, the credentials of Joseph J. Reynolds, and the resolution of the legislature of the State of Texas declaring the election of Morgan C. Hamilton illegal, submitted a report (No. 3) thereon, accompanied by the following res- olution: "Besolved, That Morgan C. Hamilton was duly elected a Senator from the State of Texas for the term commencing March 4, 1871, and is entitled to take his seat as such upon taking the required oaths. " The Senate, by unanimous consent, proceeded to consider the said resolution; and the resolution was agreed to. EKPOEI OF COMMITTEE. [The committee consisted of Messrs. Stewart, Morton, Rice, Hamlin, Hill, and Thxa- man.] In the Senate of the United States. Maeoh 18, 1871. — Ordered to be printed. Mr. Stewart, from the Committee on Privileges and Elections, submitted the follow- ing report: The Committee on Privileges and Elections, to whom was referred the credentials of the Hon. Morgan C. Hamilton, Senator-elect from the State of Texas, submit the fol- lowing report: That in pursuance of the several acts of Congress for the reconstruction of the State of Texas, the legislature convened on the 8th and completed its organization on the 10th of February, 1870. On the 22d of February, 1870, second Tuesday after its organ- ization, the legislature elected the Hon. Morgan C. Hamilton a Senator of the United States for the term commencing on the 4th of March, 1871. The same legislatpre on the same day elected the Hon. J. "W. Flanagan a Senator of the United States for the term ending March 3, 1875, and the Hon. Morgan C. Hamilton for the term ending March 3, 1871. These last two elections were to fill vacancies then existing, and both of these Senators were admitted to their seats. By the constitution of Texas there was another session of the same legislature held in Texas, after the election of Mr. Hamilton, and before the expiration of his term. This session commenced on the 10th of January, 1871, and on the second Tuesday after its organization proceeded to the election of a Senator for the term commencing on the 4th of March, 1871, the same term for which Mr. Hamilton had been elected at the pre- ceding session. General J. J. Reynolds is represented to have been elected, although the certificate referred to the committee is not signed by the governor. The reasons assigned for the election of General Reynolds are that the legislature had no aiuthority to elect Mr. Hamilton at the time of his election, first, because the State had not at that time been recognized as entitled to representation in Congress; and, secondly, because there was another session of the legislature after the election of Mr. Hamilton, and before the commencement of the term for which he was elected. The 'case of Hon. Abijah Gilbert, Senator from Florida, is precisely in point upon both of these questions. The act of Congress of July 35, 1866, declares " that the legislature of each State which shall be chosen next preceding the expiration of the time for which any Senator REYNOLDS VS. HAMILTON. 325 ■was elected to represent said State in Congress shall, on the second Tuesday after the meeting and organization thereof, proceed to elect a Senator in Congress in the place of such Senator so going out of office, in the following manner." The fact that the State was not admitted to representation until after the election of Mr. Hamilton is immaterial. The act admitting Texas to representation related back to the organization, and ratified the proceedings of the legislature. The committee therefore recommend that Mr. Hamilton be permitted to take his seat on taking the oath prescribed by the Constitution and the laws. Monday, MarcJi^O, 1871. Mr. Morgan C. Hamilton, from the State of Texas, attended, and the oaths prracribed by law were administered to him by the Vice-President, and he took his seat in the Senate. 326 SENATE ELECTION . OASES. [Forty-second Congress — First and second sessions.] GEORGE GOLDTHWAITB, Senator from Alabama from January 15, 1872, till March 3, 1877. February 6, 1871, the credentials of Mr. Goldtlnvaite, elected for the term beginning March 4, 1871, were presented, March 4, a protest of members of the legislature of Alabama against his admission to a seat in the Senate was presented; which, with the credentials, was ordered to lie on the table. March 13, the credentials and protest were referred to the Committee on Privileges and Elections. March 20, the committee reported that there would not be time at that session of Congress fully to consider the grounds upon which his right to a seat was contested, and reported a resolution that he be permitted to take his seat, and that the commiitee proceed thereafter to consider the grounds of the protest and report to the Senate thereon. This report and resolution included-the case of Foster Blodgett, of Georgia, it b'eing unanimous as to Mr. Goldthwaite, two dissenting as to Mr. Blodg- ptt. A motion was made to amend the resolution by striking out the name of Foster Blodgett, but after debate it was ordered that the resolution lie on the table. January 9, 1872, in the next session of Congress, the case of ' Mr. Blodgett having been disposed of, the Senate resolved " that George Goldthwaite be permitted to take a seat in this body as a Senator from the State of Alabama upon taking the proper oath ; and that the Committee on Privileges and Elections proceed hereafter to consider the grounds on which his right to a seat in the Senate is contested, and hereafter make re- port to the Senate thereon." Jaimary 15, Mr. Goldthwaite took his seat. No further report was made on the case, and the Senate took no further action in regard to it. The chief grounds of the * protest (given below) were that some of the members of the legislature voting for Mr. Gold- thwaite were not legally elected, having been either defeated at the polls or having procured their elections through fraud ; that one member voting for Mr. Goldthwaite had no certitieale of election to the legislature ; tliat some members voting for him were under political disabilities. The history of the cEise here given consists of a transcript of the proceedings of the Senate relat- ing to it from Senate Journals, 3d sess. 41st Cong., and 1st and 2d sess. 42d Cong. ; the report of the committee from Senate Reports, 42d Cong., 1st sess., No. 3 ; apd a copy of the protest above refen-ed to from the Congressional Globe, part 1, 1st sess. 42d Cong., pages 1, 2. " Special references to the debates of each day are inserted below. [Third session of the Forty-first Congress.] Monday, Fehmary 6, 1871. Mr. Spencer presented the credentials of George Goldthwaite, elected a Senator by the legislature of the State of Alabama for the term of six years commencing on the 4th of March, 1871. The credentials were read. [First session of the Forty-second Congress.] Monday, March 4, 1871. Mr. George Goldthwaite, whose credentials were presented on the 6th day of February last, appeared to take the oaths prescribed by law, when Mr. Sherman presented a protest signed by forty-five members of the senate and house of representatives of the legislature of the State of Alabama against the admission of George Goldthwaite to a seat in the Senate as a Senator from said State; which was read. After debate, On motion by Mr. Sherman, Ordered, That the protest, with the credentials of Mr. Goldthwaite, lie upon the table. [The debate is found on pages 1-4 of the Congressional Globe, part 1, 1st sess. 42d Cong.] Protest of members of the Alabama legislaiwre against the admission of Mr. Goldthwaite to a seat in the Senate. MoNiaoMEEY, Aba., JomMorj/ 26, 1871. To the Senate of the United States: . The subscribers, members of the senate and house of representatives of the State ot Alabama, respectfully represent: That they protest against the admission of Hon. George Goldthwaite to the Senate of GEORGE GOLDTHW^AITE. 327 the United States as a Senator from Alabama, on the grounds that he was not elected by a majority of the legal votes of the joint meeting of the legislature. He was declared elected by th^ following vote: For George Goldthwaite, 65 votes; for WiUard Warner, 50; for William J. Haralson, 14 votes. It will be seen that 65 votes constitute a majority of the votes cast, and that numberof legal votes are necessary to an election. Werepresent that Hon. George Goldthwaite did not receive that number of legal votes, as B. M. Henry, claiming to be a representative from Russell County, in said State, who voted for Hon. George Goldthwaite, was not elected by the people of said county, did not have a certificate of his election, as is required by our laws, but was defeated at the polls by several hundred, and was not legally entitled to vote for a United States Senator in said joint meeting of the legislature, wMch, if said illegal votes had been rejected, would have been sufficient to prevent the announcement of the election of Hon. George Gold- thwaite to a seat in your honorable body. Saul Bradford, of Talladega county, who had been rejected by the people at the ballot- box, was permitted to vote for said Hon. George Goldthwaite, when in our opinion his vote should have been rejected, as he had never been legally elected a member of the legislature. In the counties of Greene, Sumter, Lee, and other counties, the representatives of which all voted for Hon. George Goldthwaite, we have every reason to helieve that the elections of said representatives were procured by intimidating the voters, and in several instances fraud added thereto, and that the gentlemen claiming to be representatives of these counties were not legally elected by the people of said counties, ar^ not their legal representatives, and were not entitled to vote for United States Senator at the joint meet- ing of the general assembly. We are informed that some of the members of the legislature who voted for Hon. George Goldthwaite are laboring under political disabilities imposed by the fourteenth amendinent of the Constitution of the tJnited States, and it is an inquiry worthy the consideration of the Senate of the United States whether Hon. George Goldthwaite is not laboring under the same disabilities for his actions during the recent rebellion of the Southern States. Believing, therefore, that Hon. George Goldthwaite is not legally elected Senator from Alabama, we respectfully pray that the Senate of the United States may so decide, and declare his seat vacant. [The names of the signers are here omitted.] Monday, Inarch 13, 1871. On motion by Mr. Anthony, Ordered, That the credentials of George Goldthwaite, and the protest of members of the legislature of the State of Alabama against the election of said Groldthwaite as: a Sen- ator of the United States by the legislature of said State, be referred to the Committee on Privileges and Elections. Monday, March 20, 1871. Mr. Stewart, from the Committee on Privileges and Elections, to whom were referred the credentials of Foster Blodgett, with the memorial of members of the legislature of the State of Georgia, protesting ;;gainst the admission of said Blodgett to a seat in the Senate of the United States as a Senator from that State, and the credentials of George Goldthwaite, with the protest of sundi^ members of the legislature of the State of Ala- bama against the election of said Goldthwaite,. submitted a report (No. 3) thereon, ao- companied by the following resolution. [Resolution found at end of report.] eepoet of committee. In the Senate of the United States. Maech 20, 1871. — Ordered to be printed. Mr. Stewart, from the Committee on Privileges and Elections, submitted the follow- ing report: « The Committee on Privileges and Elections, to whom were referred the credentials of George Goldthwaite, claiming a seat in this bodyas a Senator from the State of Alabama, and the credentials of Foster Blodgett, cMmuig a seat in this body as a Senator from the State of Georgia, report: That said credentials are in due form, and prima fade entitle said Goldthwaite and Blodgett to their seats upon taking the oath prescribed by the Constitution arid laws, neither of them being under any disability. The grounds on which their right to seats are contested have not been fully considered by the committee for want of time, nor will there be sufficient time at this session to 328 SENATE ELECTION CASES. consider them. In the opinion of your committee it wonld be unjust to those States and gentlemen to keep the latter out of their seats until such investigation can he had. The conunittee therefore report the following' resolution: Resolved, That George Goldthwaite and Foster Blodgett he permitted to take seats in this body upon taking the proper oath; and that the Committee on Privileges and Elec- tions proceed hereafter to consider the grounds on' which their rights to seats, respect- ively, are contested, and hereafter make reports to the Senate thereon. WM. M. STEWART. O. P. MOETON. H. HAMLIN. B. F. RICE. We concur in the foregoing as to Goldthwaite, but not as to Blodgett. JOSHUA HILL. A. G. THUEMAN. Wednesday, March 22, 1871. On motion by Mr. Stewart, the Senate proceeded to consider the resolution reported by the Committee on Privileges and Elections to admit George Goldthwaite and Foster Blodgett to seats in the Senate of the Uirited States as Senators, respectively, from the States of Alabama and Georgia; when Mr. Thurman called for a division of the question, so that it shall be taken first upon the admission of George Goldthwaite to his seat in the Senate as a Senator from the State of Alabama. Pending debate. Ordered, That the further consideration of the said resolution be postponed to to- morrow. [The debate is found on pages 218, 219 of the Congressional Globe, part 1, 1st sess. 42d Cong.] Saturday, March 25, 1871. On motion by Mr. Stewart, the Senate resumed, &c. [The debate is found on pages 271-274 of the Congressional Globe, part 1, 1st sess. 42dCong.] Thubsday, April 6, 1871. On motion by Mr. Stewart, the Senate resumed the consideration of the resolution re- ported by the Committee on Privileges and Elections to permit George Goldthwaite and Foster Blodgett to take seats in the Senate of the United States, upon taking the proper oaths, as Senators respectively from the States of Alabama and Georgia; and A division of the question having heretofore been called for by Mr. Thurman, so that a separate vote be taken on the admission of each person named in the resolution. The Vice-President decided that the question on the resolution was nrft susceptible of a division, as desired by Mr. Thurman, but that the end desired by him could be attained by amendment. On motion by Mr. Hill to amend the resolution by striking out the words "and Fos- ter Blodgett," After debate, , Ordered, That the further consideration of the resolution be postponed to to-morrow. [The debate is found on pages 494r-498 of the Congressional Globe, part 1, 1st sess. 42d Cong.] ******* On motion by Mr. Stewart, the Senate resumed the consideration of the resolution re- ported by the Committee on Privileges and Elections to permit George Goldthwaite and Foster Blodgett to take seats in the Senate of the United States, upon taking the proper oaths, as Senators respectively from the States of Alabama and Georgia. On motion by Mr. Edmunds, the Senate proceeded to the consideration of executive business. , [The debate is found on pages 506, 507 of the Congressional Globe, part 1, 1st sess. 42d Cong.] Friday, ApHl 7, 1871. The Senate resumed the consideration of the resolution reported by the Committee on Privileges and Elections to permit George Groldthwaite and Foster Blodgett to take seats in the Senate of the United States, upon taking the proper oaths, as Senators respectively from the States of Alabama and Georgia; and The question being on the amendment proposed by Mr. Hill, On motion by Mr. Anthony, and by unanimous consent, the further consideration was informally passed over. ***** -x- * The Senate then again resumed the consideration of the resolution reported by the GEOEGE GOLDTHWAITE. 329 Committee on Privileges and Elections to permit George! Goldthwaite and Foster Blodgett to take seats in the Senate of the United States, upon taking the proper oaths, as Sena^ tors respectively from the States of Alabama and Georgia; and The question being on the amendment proposed by Mr. Hill to the resolution to strike out the words ''and Foster Blodgett," On motion by Mr. Edmunds, the Senate proceeded to the consideration of executive business. [No debate took place.] Monday, April 10, 1871. The Senate resumed the consideration of the resolution reported by the Committee on Privileges and Elections to permit George Goldthwaite and Foster Blodgett to take seats in the Senate of the United States, upon taking the proper oaths, as Senators respectively from the States of Alabama and Georgia; and The question being on the amendment proposed by Mr. Hill to the resolution to strike out the words "and Foster Blodgett," After debate, On motion by Mr. Edmunds that the resolution lie on the table, it was 'determined in the negative — yeas 25, nays 26. On motion by Mr. Stewart, the yeas and nays being desired by one-fifth of the Senators present. Those who voted in the aflrmative are Messrs. Ames, Anthony, Boreman, Bucking- ham, Carpenter, Chandler, Cole, Conkling, Corbett, Edmunds, Ferry of Michigan, Freling- huysen, Harlan, Hill, Hitchcock, Howe, Morrill of Vermont, Patterson, Pratt, Sawyer, Scott, Sherman, Tipton, Trumbull, and Windom. Those who voted in the negative are Messrs. Bayard, Brownlow, Cameron," Casserly, Clayton, Cooper, Cragin, Davis, Gilbert, Hamlin, Johnston, Kelly, Morton, Nye, Osbom, Ramsey, Saulsbury, Schnrz, Spencer, Stevenson, Stewart, Stockton. Sumner, Thurman, West, and Wright. So the motion to lay the resolution on the table was not agreed to; and Pending further debate, Mr. Thurman raised a question of order, namely : That in discussing the question before the Senate debate upon the question whether Foster Blodgett or Joshua Hill had or had not committed perjury was not in order. The Vice-President sustained the point of order raised by Mr. Thurman, and ruled the debate on that question out of order; and After further debate. On motion by Mr.' Trumbull (at 5 o'clock p. m.), the Senate adjourned. [The debate which took place, pages 540-558 of the Congressional Globe, part 1, 1st sess. 42d Cong., was wholly on the case of Mr. Blodgett.] Tuesday, April 11, 1871. The Senate resumed the consideration of the resolution reported by the Committee on Privileges and Elections to permit George Goldthwaite and Foster Blodgett to take seats in the Senate of the United States, upon taking the proper oaths, as Senators, re- respectively, irom the States of Alabama and Georgia; and The question being on the amendment proposed by Mr. Hill to the resolution to strike out the words "and Poster Blodgett, " On motion by Mr. Edmunds that the resolution lie on the table, it was determined in the affirmative — yeas 19, nays 17. On motion by Mr. Robertson, the yeaa and nays being desired by one-fifth of the Senators present. Those who voted in the affirmative are Messrs. Ames, Anthony, Boreman, Carpenter, Chandler, Cole, Conkling, Davis of WestYirginia, Edmunds, Harlan, HUl, Kelly, Mor- rill of Maine, Pratt, Scott, Sherman, Tipton, Wilson, and Wright. Those who voted in. the negative are Messrs. Bayard, Blair, Casserly, Cooper, Davis of Kentucky, Gilbert, Hamilton of Maryland, Hamlin, Johnston, Morton, Rice, Robertson, Saulsbury, Schurz, Stevenson, Stockton, and Wickers. So the resolution was ordered to lie on the table. [No debate took place.] [Second session of the Forty-second Congress.] TmmsDAY, December 21, 1871. Mr. Thurman submitted the following resolution for consideration: " Sesolved, That George Goldthwaite be permitted to take a seat in this body as a Senator from the State of Alabama, upon taking the oath, and that the. Committee on 330 SENATE ELECTION CASES. Privileges and Elections proceed liereafter to consider the grounds on which his right to a seat is contested, aood hereafter make report to the Senate thereon. 'i [The dehate is found on pages 261, 262 of the Congressional Globe, part 1, 2d sess. 42d Cong.] TTJESDAYj-Jawttar!/ 9, 1872. On motion by Mr. Thurman that the Senate proceed to the consideration of the reso- lution reported from the Committee on Privileges and Elections on the 20th of March last, to admit George Goldthwaite and Foster Blodgett to seats in the Senate as Senators; respectively, from the States of Alabama and Georgia, it was determined in the affirm- ative, and the Senate resumed the consideration of the said resolution. On the question to agree to the resolution, whieh is in the following words: " Eesolved, That George Goldthwaite and Foster Blodgett be permitted^to take seats in this body upon taking the proper oath; and that the Committee on Privileges and Elections proceed hereafter to consider the grounds on which their rights to seats, respectively, are contested, and hereafter make reports to the Senate thereon," On motion by Mr. Thurman to amend the resolution by striking out all after the word "resolved," and in lieu thereof inserting: ' ' That George Goldthwaite be permitted to take a seat in this body as a Senator from the State of Alabama upon taking the proper oath; and that the Committee on Privi- leges and Elections proceed hereafter to consider the grounds on which his right to a B6at is contested, and hereafter make report to the Senate thereon," It was determined in the affirmative; and On the question to agree to the resolution as amended, it was determined in the affirmative. So the resolution as amended was agreed to. [The debate is found on pages 319, 320 of the Congressional Globe, part 1, 2d sess. 42d Coiig.] Monday, January 15, 1872. Mr. George Groldthwaite, from the State of Alabama, attended, and the oaths pre- scribed by law were administered to him by the Vice-President, and he took his seat In the Senate. NORWOOD V8 BLODGETT. 331 [Forty-second Congress — ^First and second sessions.] THOMAS M. NOEWOOD vs. FOSTEE BLODGETT, of Georgia. January 20, 1871, the credentials of Mr. Blodgett, elected for the term beginning March 4, 1871, were presented. March 2, a memorial of members of the last general assembly of Georgia, remonstrat- ing against his admission to a seat in the Senate, was presented. March 13, the credentials and memorial were referred to the Committee on Privileges and Elections. March 20, the committee reported that there would not be time at that session of Congress fully to consider the grounds upon which his right to a seat was contested, and reported a resolution that he be permitted to take his seat and that the committee proceed thereafter to consider the grounds of the remonstrance and report to the Senate thereon. This report and resolution included thC'case of George Goldthwaite, of Alabama. After debate it was ordered that the resolution lie on the table. December 4, 1871, in the next session of Congress, the credentials of Mr. INorwood, elected for the same term, were pre- sented. December 11, they were referred to the Committee on Privileges and Elections. Decem- ber 18, the committee reported in favor of Mr. Norwood. It appears that the legislature electing Mr. Blodgett was elected in April, 1868. By the laws of Georgia then in force it was provided that another legislature should be elected in November, 1870, and should meet and organize in January, 1871. The legislature electing Mr. Blodgett, subsequently to his election, provided by law that the legislature which was to be elected in Novem'ber, 1870, and organized in January, 1871, should not be elected until December, 1870, and should not meet and organize until November, 1871. This sec- ond legislature was the one electing Mr. Norwood. The question to be decided was, which wag the legislature *' chosen next preceding the expiration of the time for which any Senator was elected to rejpresent said State in Congress?" (Act of July 25, 1SG6.) It was claimed by Mr. Blodi;- ^ ett that chosen and elected mean different things ; that the legislators are elected by the people, but that the legislature is not chcsen until the members elected assemble and organize as a legislature ; ■ that the legislature electing Mr. Norwood did not assemble until after March 4, 1871, and so could not be the one " chosen next precedingthe expiration,'* &c. The committee reported that the mean- ing of "the act referred to was that ' ' the legislature whose members should be elected next preced- ing the expiration of the Senatorial term should elect the successor"; that the words cftoscmiand elected were synonymous. They reported a resolution that Mr. Norwood was entitled to the seat, which was agreed to December 19, and Mr. Norwood took the oath of office. Mr. Blodgett was allowed compensation and mileage. The history of the case here given consists of a transcript of the proceedings of the Senate relating to it from Senate Journals, 3d sess. 41st Cong., and 1st and 2d sess. 42d Cong. , and the reports of the oommittee f^om Senate Reports, 42d Cong., 1st sess., No. 3, and 42d Cong., 2d sess., vol. 1, No. 10. Special references tb the debates of each day are inserted below. [Third session of the Forty-first Congress.] Feidat, January 20, 1871. Mr. Morton presented the credentials of Mr. Foster Blodgett, elected a Senator irom. the State of Georgia for the term of six years commencing on the 4th day of March, 1871. The credentials were read. Ordered, That they lie on the table. Thuesdat, March 2, 1871. Mr. HiU presented a memorial of members of the last general aasembly of the State of Georgia, remonstrating against the admission of Foster Blodgett to a seat in the Senate of the United States. Ordered, That it lie on the table. [First session of the Forty-second Congress.] Satueday, March 4, 1871. On motion by Mr. Morton, Ordered, That the credentials of Mr. Foster Blodgett, as Senator-elect from the State of Georgia, and the protest of members of the general assembly of the State of Georgia against his election, on the files of the last Congress, be taken from the files and laid on the table. [The debate is fovmd on pages 4, 5 of the Congressional Globe, part 1, 1st pess. 42d Cong.] Monday, March 13, 1871. On motion by Mr. Anthony, Ordered, That the credentials of Foster Blodgett and the memorial of members of the general assembly of the State of Georgia against the admission of said Blodgett to a seat 332 SENATE ELECTION CASES. in the Senate of the United States as a Senator from that State be referred to the Com- mittee on Privileges and Elections. ' Monday, March 20, 1871. Mr. Stewart, from the Committee on Privileges and Elections, to whom were referred the credentials of Foster Blodgett, with the memorial of members of the legislature of the State of Georgia, protesting against the admission of said Blodgett to a seat in the Senate of the United States as a Senator from that State, and the credentials of George Goldthwaite, with the protest of sundry members of the legislature of the State of Alar bama against the election of said Goldthwaite, submitted a report (No. 3) thereon, ac- companied by the following resolution: "Bemlved, That George Goldthwaite and Foster Blodgett be permitted to take seatsin this body upon taking the proper oath; and that the Committee on Privileges and Elec- tions proceed hereafter to consider the grounds on which their rights to seats, respect- ively, are contested, and hereafter make reports to the Senate thereon." Mr. Hill presented a brief* of the memorial of members of the legislature of the State of Georgia, protesting against the admission of Foster Blodgett to a seat in the Senate of the United States as a Senator from that State. Ordered, That it lie on the table and be printed. eepoet of committee. In the Senate of the United States. Maech 20, 1871. — Ordered to be printed. Mr. Stewart, from the Committee on Privileges and Elections, submitted the follow- ing report: The Committee on Privileges and Elections, to whom were referred the credentials of George Goldthwaite, claiming a seat in this body as a Senator from the State of Alabama, and the credentials of Foster Blodgett, claiming a seat in this body as a Senator from the State of Georgia, report: That said credentials are in due form, and prima facie entitle said Goldthwaite and Blodgett to their seats upon taking the oath prescribed by the Constitution and laws, neither of them being under any disability. The grounds on which their rights to seats are contested have not been fully considered by the committee for want of time, nor will there be sufScient time at this session to consider them. In the opinion of your committee it would be unjust to those States and gentlemen to keep the latter out of their seats until such investigation can be had. The committee therefore report the following resolution: Resolved, That George Goldthwaite and Foster Blodgett be permitted to take seats in this body upon taking the proper oath; and that the Committee on I'rivileges and Elec- tions proceed hereafter to consider the grounds on which their rights to seats, respect- ively, are contested, and hereafter make reports to the Senate thereon. WM. M. STEWART. O. P. MORTON. H. HAMLIN. B. F. RICE. We concur in the foregoing as to Goldthwaite, but not as to Blodgett. JOSHUA HILL. A. G. THURMAN. Tuesday, March 21, 1871. Mr. Hill presented the memorial t of John E. Bryant, of Georgia, remonstrating against the admission of Foster Blodgett to a seat in the Senate as a Senator from the State of Georgia. Ordered, That it lie on the table and be printed. Wednesday, March 22, 1871. On motion by Mr. Stewart, the Senate proceeded to consider the resolution reported by the Committee on Privileges and Elections to admit George Goldthwaite and Foster Blodgett to seats in the Senate of the United States as Senators, respectively, from the States of Alabama and Georgia; when ♦Found in Senate Miscellaneous, 1st se3s.42d Cong., No. 24. t Found in Senate Miscellaneous, lat sess. 42d Cong., No. SO, NORWOOD VS. BLODGETT. 333 Mr. Thurmau called for a division of the question, so that it shall be taken first upon the admission of George Goldthwaite to his seat in the Senate as a Senator from the State of Alabama. Pending debate, Ordered, That the further consideration of the said resolution be postponed to to-mor- row. [The debate is found on pages 218, 219 of the Congressional Globe, part 1, Ist sess. 42dCong.] Satueday, March 25, 1871. Oh motion by Mr. Stewart, the Senate resumed, &c. [The debate is found on pages 271-274 of the Congressional Globe, part 1, 1st sess. 42d Cong. ] Thursday, April 6, 1871. On motion by Mr. Stewart, the Senate resumed the consideration of the resolution re- ported by the Committee on Privileges and Elections to permit George Goldthwaite and Foster Blodgett to take seats in the Senate of the United States, upon taking the proper oaths, as Senators, respectively, from the States of Alabama and Georgia; and A division of the question having heretofore been called for by Mr. Thurman, so that a separate vote be taken on the admission of each person named in the resolution, The Vice-President decided that the question on the resolution was not^supceptible of a division, as desired by Mr. Thurman, but that the end desired by him could be attained by amendment. On motion by Mr. Hill to amend the resolution by striking out the words "and Foster Blodgett," After debate, Ordered, That the further consideration of the resolution be postponed to to-morrow. [The debate is found on pages 494-498 of the Congressional Globe, part 1, Ist sess. 42d Cong.] * * * * * * * On motion by Mr. Stewart, the Senate resumed the consideration of the resolution re- ported by the Committee on Privileges and Elections to permit George Goldthwaite and . Foster Blodgett to take seats in the Senate of the United States, up6n taking the proper oaths, as Senators, respectively, from the States of Alabama and Georgia. On motion by Mr. Edmunds, the Senate proceeded to the consideration of executive business. [The debate is found on pages 506, 507 of the Congressional Globe, part 1, 1st sess. 42d Cong.] Friday, April 7, 1871. The Senate resumed the consideration of the resolnticJh reported by the Committee on Privileges and Elections to permit George Goldthwaite and Foster Blodgett to take seats in the Senate of the United States, upon taking the proper oaths, as Senators, re- spectively, from the States of Alabama and Georgia; and The question being on the amendment proposed by Mr. Hill, On motion by Mr. Anthony, and by unanimous consent, the further consideration was informally passed over. * * * * * * » The Senate then again resumed the consideration of the resolution reported by the Committee on Privileges and Elections to permit George Goldthwaite and Foster Blod-, gett to take seats in the Senate of the United States, upon taking the proper oaths, as Senators, respectively, from the States of Alabama and Georgia; and The question being on the amendment proposed by Mr. Hill to the resolution to strike out the words "and Foster Blodgett," On motion by Mr. Edmunds, the Senate proceeded to the consideration of executive business. [No debate took place.] Monday, April 10, 1871. The Senate resumed the consideration of the resolution reported by the Committee on Privileges and Elections to permit G«orge Goldthwaite and Foster Blodgett to take seats in the Senate of the United States, upon taking the proper oaths, as Senators, re- spectively, from the States of Alabama and Georgia; and The question being on the amendment proposed by Mr. Hill to the resolution to strike out the words "and Foster Blodgett," After debate, ' 334 SENATE ELECTION CASES. On motion by Mr. Edmnnds that the resolution lie on the table, it was determined - in the negative — ^yeas 25, nays 26. On motion by Mr. Stewart, the yeas and nays being desired by one- fifth of the Senators present, Those who voted in the affirmative are Messrs. Ames, Anthony, Bpreman, Bucking- ham, Carpenter, Chandler, Cole, Conkling, Corbett, Edmunds, Felry of Michigan, Fre- linghuysen, Harlan, Hill, Hitchcock, Howe, Morrill of Vermont, Patterson, Pratt, Saw- yer, Scott, Sherman, Tipton, Trumbull, and Windom. Those who voted in the negative are Messrs. Bayard, Brownlow, Cameron, Casserly, Clayton, Cooper, Cragin, Davis, Gilbert, Hamlin, Johnston, Kelly, Morton, Nye, Osbom, Eamsey, Saulsbury, Schurz, Spencer, Stevenson, Stewart, Stockton, Sumner, Thnrman, West, and Wright. So the motion, to, lay the resolution on the table was not agreed to; and Pending furthet debate, Mr. Thurman raised a question of order, viz: That in discussing the question before the Senate debate upon the question whether Foster Blodgett or Joshua Hill had or had not committed perjury was not in order. The Vice-President sustained the point of order raised by Mr. Thurman, and ruled the debate on that question out of order; and After further debate. On motion by Mr. Trumbull (at 5 o'clock p. m.), the Senate adjourned. [The debate, which was wholly on the credentials of Mr. Blodgett, is found on pages 540-558 of the Congressional Globe, part 1, 1st sess. 42d Cong.] Tuesday, April 11, 1871. The Senate resumed the consideration of the resolution reported by the Committee on Privileges and Elections, to permit George Goldthwaite and Foster Blodgett to take seats in the Senate of the United States, upon taking the proper oaths, as Senators, re- spectively, from the States of Alabama and Georgia; and The question being on the amendment proposed by Mr. Hill to the resolution to strike out the words ' ' and Foster Blodgett, ' ' On motion by Mr. Edmunds that the resolution lie on the table, it was determined in the affirmative — yeas 19, nays 17. On motion by Mr. Eobertson, the yeas and nays being desired by one-fifth of the Sena- tors present. Those who voted in the affirmative are Messrs. Ames, Anthony, Boreman, Carpenter, Chandler, Cole, Conkling, Davis of West Virginia, Edmunds, Harlan, Hill, Kelly, Mor- • rill of Maine, Pratt, Scott, Sherman, Tipton,. Wilson, and Wright. Those who voted in the negative are Messrs. Bayard, Blair, Casserly, Cooper, Davis of Kentucky, Gilbert, Hamilton of Maryland, HamUn, Johnston, Morton, Eice, Eobertson, Saulsbury, Schurz, Stevenson, Stockton, and Vickers. So the resolution was ordered to lie on the table. [No debate took place.] [Second session of the Forty-second Congress.] Monday, December 4, 1871. Mr. Thurman presented the credentials of Thomas M. Norwood, elected a Senator by the general assembly of the State of -Georgia for the term of six years commencing March 4, 1871; which were read. Ordered, That they lie on the table. Monday, Deceniberll, 1871. On motion by Mr. Thurman, Ordered, That the credentials of Thomas M. Norwood, claiming a seat in the Senate as a Senator from the State of Georgia, be referred to the Committee on Privileges and Elections. Monday, December 18, 1871. Mr. Carpenter, from the Committee on Privileges and Elections, to whom were re- ferred the credentials of Thomas M. Norwood, claiming a seat in the Senate as a Senator from the State of Georgia, submitted a report (No. 10) thereon, accompanied by the fol- lowing resolution. (Eesolution found at end of report.) KORWOOD VS. BLODGETT. 335 EBPORT OF COMMITTEE. [The committee consisted of Messrs. Morton (chairman), Eice, Carpenter, Logan, HUl, Thurman, and Anthony.] In the Senate of the United States. Decembbe 18, 1871.— Ordered to be printed. Mr. Carpenter, from the Committee on Privileges and Elections, submitted the fol- lowing report: The Committee on Privileges and Elections, to whom were referred' the credentials of, Foster Blodgett and Thomas M. Norwood, each claiming a seat as Senator from the State of Georgia for the term which commenced March 4, 1871, respectiuUy submit the ibl- I'owing report: The Senate being a branch of the Government of the United States, the right to elect a Senator is conferred and its exercise regulated by the Constitution of the United States, and no law or regulation of a State touching such election has any validity beyond the authority conferred upon the State by the Constitution of the United States. The Constitution, Article I, section 3, provides that Senators shall be chosen by the legislatures of the respective States. .Section 4 of the same article provj^les: ' ' The times, places, and manner of holding elections for Senators and Kepresentatives shall be prescribed in each Sta,te by the legislature thereof; but the Congress may at any time, by law, make or alter such regulations, except as to the places of choosing Senators." The first clause of this section commits to the legislatures of the States primarily the whole subject of electing Senators and Representatives, andauthorizes them to make such regulations upon the subject as they may deem proper. The phrase " the times, places, and manner of holding such elections for Senators and Representatives " em- braces the whole subject of election of Senator except that the election must be made by the legislature of the State, as provided in the third section. The legislature may therefore provide that a Senator shall be elected by the legislature to^e chosen next before the expiration of a term or next after its commencement. The second clause, quoted from the fourth section, confers upon Congress the same power and absolutecon- trol over the subject, to be exercised in the discretion of Congress, except that Congress cannot, fix a place for holding the election different from that fixed by the State legisla- ture. ' ^jx the exercise of this undoubted constitutional power Congress passed an act regu- iatiug the election of Senators, approved .Tuly 25, 1866 (14 Stat, at Large, page 243), which provides: ' ' The legislature of each State which shall be chosen next preceding the expiration of the time for which any Senator was elected to represent said State in Congress shall, on the second Tuesday after the meeting and' organization thereof, proceed to elect a Sena- tor in Congress in place of such Senator so going out of office. ' ' Poster Blodgett claims to have been elected on the 15th day of Febi^uary, A. D. 1870, by the legislature then existing and in session. He received the requisite number of votes, and his credentials are in due form. The question, therefore, is whether it was competent for-that legislature to elect a Senator to serve during the term before men- tioned. If this question can be answered in the affirmative, Mr. Blodgett is entitled to the seat; if not, his pretended election was an absolute nullity. The answer to this question depends upon the true construction of the act of Congress before quoted. It is claimed by Mr. Blodgett that chosen and ffedeiJmean different things; that legisla- tors are elected by the people, but that legislators are not the legislature, and that the , legislature is not chosen until the members elected assemble as provided by law and organize as a legislature by determining what persons elected or claiming to be elected are entitled to seats. That is, the people elect the legislators, and the legislators after their election choose the legislature, and hence the legislature which was in fact organ- ized next preceding the expiration of the term of office is the one authorized to elect a successor without regard to the time when the members of such legislature were elected by the people. This refinement of reasoning does not meet the approbation of your committee. The r!stion is, what was the intention of Congress in passing this act? The legislature ignated by the act is the one " which shall be chosen next preceding the expiration of the time," &c. There is no such thing as choosing a legislature except by choosing its members. The Constitution declares that Senators shall be dected by the legislature of each State. Hence the act of Congress employs the samephrase. But your committee cannot doubt that it was the intention of Congress to provide that.the legislature whose members should be ele It appears, therefore, that Abbott rests his claim to the seat solely upon what he assumes to be the legal result of the conceded ineligibility of Vance, who, although re- ceiving a majority of the votes, is not entitled to take the oath of office or hold the seat. He assumes that it is a conclusion of law that if the candidate who has received the highest number of votes is ineligible, and that meligibility was known to those who voted for him before casting their vot^, that tlje votes so cast for Wm are void, an4 should be 340 SENATE ELECTION CASES. considered as nullities, and as though they never had been cast; and, consequently, tne candidate receiving the next highest number of votes is elected. In support of this view of the case the memorialist has called the attention of the com- mittee to a large number of English authorities bearing on this question. While the committee make no question as to the general tenor of the decisions to which attention has been called, yet it is evident that these are based upon a very different rule from that adopted in our country. To show that this rule is different, the committee would refer to the following authorities, which are cited in the very able report of Mr. Dawes from the Committee on Elections, in the case of Smith vs. J. Y. Brown (Report of Com- mittees, No. 11, 2d sess. 40th Cong.). Haywood on County Elections, 535: "If, before the election comes on, or a majority has polled, sufficient notice has been publicly given of his ineligibility, the unsuccessful candidate next to him on the poU must ultimately be the sitting member." Male on Elections, 336: "If an election is made of a person or persons ineligible, such election is void, where the ineligibility is clear and pointed out to the electors at the poll." In the case of King w. Hawkins (10 East. , 210), Lord Ellenborough states that such is the law in England, ' ' after notice of ineligibility. ' ' In the case of Claridge vs. Evelyn (5 B. and A., 8), Abbott, C. J., remarks: "I am of the opinion, therefore, that he (the infant) was ineligible, and due notice of his incapacity having been given to the electors at the time of the election, their votes are thrown away. ' ' Gierke on Election Committees, 156: "Whenever a candidate is disqualified from sitting in Parliament, and notice thereof is publicly given to the electors, all votes given to such disqualified candidate will be considered as thrown away. ' ' This notice, in order to bring the case within the rule, was required to be strictly formal, and was generally given at the polls. And the reason for this is apparent, as by their' theory a voter who, after due notice of the ineligibility of a candidate, persisted in voting for him, was deemed guilty of a crime. Therefore, as all crimes are committed with an intention to commit the offense, it was necessary that the knowledge of the fact by the voter should be clear. Roe on Elections, 256: "It will be seen that the latter proposition is that which constitutes the lawin cases where misapplication of the franchise by the electors was willful, and therefore made in their own wrong." But is such a principle applicable in a government based upon the theory that the power emanates from the people? In the British Government the case is exactly the reverse, as there the theory is that the power originates with the monarch, and the privi- leges allowed the people to select representatives are, under that theory, considered as con- ceded and not as inherent rights. But this Government rests upon an entirely different basis. Here the power originates with the people, and that which the Government is au- thorized to exercise is conceded by the people. The right to designate who shall exercise this power has never been delegated. The method by which this choice shall be made known consistent with this theory can never be otherwise than by giving the majority or plurality the right to decide. Any attempt to restrict the right of the voter is an attempt to invade that right; therefore the theory that casting a vote knowingly for an ineligible candidate is in the nature of a crime which may be punished by ignoring the act of the majority and recognizing the act of the minority is in direct conflict with that most sacred right which the people of this Government Tiave always guarded with jealous care. Such a rule is consistent with the theory of the British Government, as it atlbrds one means of preventing the power from passing into the hands of the people; but it is directly at variance with the theory of our Government, as it affords one means by which that right which the people have of selecting their representatives may be abridged. While, therefore, the general tenor of the English authorities to which he refers us is admitted to be as claimed by the memorialist, yet we do not conceive such a rule to be applicable to and consistent with the political institutions of the United States, where the right of the majority to govern and the Government is based upon the consent of the governed is one of the first political lessons to be learned. There is also another very ^trong reason why the English authorities relied upon by. the memorialist are not applicable in the present case, even if the spirit and funda- mental idea of our institutions were insufScient to show this. The third section of the fourteenth amendment of the Constitution, which imposes the disabilities in question, also contemplates and provides for the removal thereof by Con- gress. There is no such feature in the English law. The English cases are therefore RAKSOM VS. ABBOW. 341 based upon a very different state of facts from those that exist in this countrj , and are not precedents for this case. lb is difficult to conceive how the Constitntio^ could grant authority to Congress to remove the disabilities under vfhich an individualwho has been elected is laboring, and allow him to take his seat as a member, and yet at the same time embrace the idea that such an election is -wholly void and the votes cast for him nullities. Yet Con- gress by its action in numerous instances has giventhe first construction to this clause of the Constitution, and if the memorialist in this case shall be admitted to his seat the Senate will have to give the second construction. The English law in question does not obtain in the United States, as is clearly shown from the following considerations: First. The judicial decisions are against it, there being but one decision which sus- tains it, namely, the Indiana case of 14 Ind., page 927; while on the other hand are the decisions in Maine, New Jersey, Pennsylvania, Wisconsin, and California, to which your committee, would refer, and from which the following quotations are made: 1795. The State vs. Anderson (1 Cox, N. J. Eep., 318): ' 'Anderson was elected sheriff of Hunterdon. He had not been three years a freeholder, and was therefore absolutely disqualified, the .statute of 1788 having declared that no person shall hereafter be eligible to the ofiSceof sheriff in any county in this State unless he shall be and hath been an inhabitant thereof and possessing a freehold estate in his own right in fee-simple in the same county for three years previous to his election." — (324.) Held by the court — ■' That Anderson was disqualified, but that his election was not void. The election of an unqualified person as sheriff is not ipso facto void; it is only voidable.— (Syllabus, 318). Still, however, we think the election not ipsofa^ito void."' — (Opinion, 327.) 1849. State vs. Giles, ex rel. Dunning, &c. (1 Chand., Wis. Eep., 112): "Two questions arose in this case: " First. Whether the person holding the office of sheriff at the time of the adoption oi the constitution was eligible to that office at the next ensuing election. " Second. If the then sheriff was ineligible, whether the person who at that elec- tion received the next highest number of votes could be considered as entitled to the office.— (13.) " ' The mere ineligibility of a person to hold a particular office, and who receives the greatest number of votes, such votes are not a mere nullity, but should be counted by the canvassers. A contestant for the same office, and receiving a lesser number of votes, though eligible, cannot be regarded as elected, and does not thereby become invested with the right to the office.' — (Syllabus, 112.) " It is proper to say that we are all of the opinion that the mere ineligibility of a candi ■ date does not, as the law now is, render void the votes cast for him; that such votes shoulo not be rejected, but should be counted by the canvassers, and that in the event of such ineligible person having the highest number of votes, the person having the next highest number is not thereby elected. If any public embarrassment is apprehended from this, such as that an office may remain indefinitely vacant by reason of a majority of the elect- ors obstinately persisting in voting for an ineligible person, it is within the undoubted power of the legislature to prevent it by enacting that all such votes shall be deemed void and not be counted." — (Opinion, 117.) And this remedy , is so reasonable and practical that we may well ask, if it is intended that the English rule shall prevail in this country, why has it not been resorted to ?, Our answer is that such an idea is contrary to the spirit of our institutions and opposed to the principle that all power granted is by the consent of the governed. When we decide that a minority of votes may elect we strike a blow at the very heart of this republican principle. 1855. 38 Maine Rep., 597: A majority of the votes at the election in Sagadahoc County were cast for Abel C. Dinslow for county commissioner. There was no such person in being. The governor submitted to the judges the question whether it was competent "to throw out the votes for Abel C. Dinslow and issue a new commission to'such person who is eligible to said office as shall appear to have the highest number of votes?" The judges answered in the negative. They were further asked whether the office was vacant. The judges answered it was. 1861. State pxrel. Off. vs. Smith (14 Wis., 497): "The remaining questions are: First. Whether the defendant, being an alien and not a qualified elector at the time of his election, was eligible to the office. Second. If he was ineligible, whether the relator, who received the next highest number of votes cast is entitled to the office. 342 SENATE ELECTION CASES. " The last question has heen already settled in this State by the case of the State v». Giles (1 Chand., 112.) It -was there held by the unanimous judgment of the court that in the absence of a statute declaring it so, the' mere ineligibility of a candidate does not render void the votes cast for him; that such votes should not be rejected, but should be counted by the canvassers ; and that in the event of such ineligible person having the highest number of votes, the person having the next highest number would not be thereby elected. " — (Opinion, 498.) 1867. Commonwealth vs. Cluley (56 Penna., 270): "The votes cast at an election for a person who is disqualified from holding an office are not nullities. They cannot be rejected by the inspectors, or thrown out of the count by the return judges. The disqualified person is a person still, and every vote thrown for him is formal. Even in England it has been held that votes for a disqualified person are not lost or thrown away so as to justify the presiding officers in returning as elected another candidate having a less number of votes, and if they do so a quo warranto in- formation will be granted against the person so declared to be elected, on his accepting the office. {See Cole on Quo Warranto, 141-2; Eegina vs. Hioms, 7 Ad. & E., 960; 3 Nev. & Perry, 184; Eex vs. Bridge, 1 M. & S., 76.) Under institutions such as ours are there is even greater reason for holding that a minority candidate is not entitled to the office if he who received the largest number is disqualified. We are not informed that there has been any decision strictly judicial upon the subject, but in our legislative; bodies the question has been determined. It was determined against a minority candi- date in the' legislature of Kentucky, in a case in which Mr. Clay made an elaborate re- port and was sustained. In 1793 Albert Gallatin, elected a Senator from this State, was declared by the Senate of the United States disqualified because he had not been a cit- izen of the United States nine years, and his election was declared void for that reason, but his seat was not given to his competitorj Nobody supposed the minority candidate was elected. There have been several other cases of contested elections in which the successful candidates were decided to have been disqualified, and denied their offices. John Bailey's case is one of them. He was elected to Congress Jrom Massachusetts, and refused his seat in 1824. But neither in his case, nor in any other with which we are acquainted, were the votes given to the successful candidate treated as nullities, so as to entitle one who had received a less number of votes to the office. There is a class of cases in England apparently, but not really, asserting otherwise. " — (Opinion of the court by Strong, J.) This able opinion by Judge Strong, now on the Supreme Bench of the United States, is wen worth careful consideration. Your committee would call special attention to that sentence where it is stated that "the disqualified person is a person still, and every vote thrown for him is formal." The act of Congress prescribing the time and manner of electing Senators specifies what the vote shall be for in order to make it available in the count; for it says "each house shall openly, by 2tviva uoce vote of each member present, name one person for Senator." The vote must be for a person, not a blank in tact, not lor a myth, but for a person. But if the vote is cast for a person for Senator in Congress from that State, this statute has been formally complied with, and no construction can change the fact. Vance is a person; 63 viva voce votes in the House and 32 viva voce votes in the Senate were given for him for Senator in Congress from North Carolina on the day and at the place required. Then the provisions of the act of July 25, 1866, have been strictly and formally complied with. What power, then, has the Senate of the United States, or any court, to declare these votes were never cast for a person? For this, it seems to your committee, must be said before the memorialist could be entitled to the ^eat he claims. But even this conclusion must result in a decision adverse to his claim; for if these votes are declared nullities, then no quorum voted. (Also Saunders vs. Hayes, 13 Col., pages 145, 156; 10 Col., Whitman vs. Maloney.) Secondly. The legislative decisions are against the idea that the English law obtains in this country. So far as any action has been taken in the Senate which bears upon the question, it has been decidedly against the English law. In the case of Mr. Gallatin, from Pennsylvania, in 1793, although deciding him to be ineligible and his election void, yet, by resolution, the governor of that Commonwealth was simply notified of this action. — (Cont. El., 3d Cong., 1st sess.,page 859.) The case of Mr. Shields, of Illinois.— (Com. El. Cong., from 1834 to 1865, page 606.) The case of Yulee vs. Mallory, of Florida, where blank votes were taken into the count.— (Cont, El., page 608, 32d Cong.) The cases of Mr. Thomas, of Maryland, and Miller, of Georgia, where the oath of office was modified, is a declaration on the part of the Senate of the American rule. ^ In the House of Eepresentatives the same rule has so far prevailed. The case of Mr. Bailey, -of Massachusetts, 1824, where the candidate receiving the highest vote was declared ineligible, yet the votes given to him, as Judge Strong remarks in the case of Cluley, ' ' were not treated as nullities. " — (Cont. El. from 1789 to 1834, page 854.) RANSOM VS. ABBOTt 343 t'he case of Smith vs. J. Y. Brown, 1868, where the present question is ably discussed in the report by Mr. Dawes from the Committee on Elections, and it is decided that a minority cannot elect.— (Cont. El. from 1865 to 1871, page 395.) In the case of McKee vs. J. D. Young, 1868, although the claim of the contestant was decided on other grounds, yet the opinion is reaflirmed that a minority cannot eledt, — (Cont. El. from 1865 to 1871, page 422.) The case of Christy va. Wimpy is of a similar character.— (Cont. El., 1865 to 1871, page 464.) , Also the case of Jones vs. Mann, 1869.— (Cont. El., 1865 to 1871, page 471.) The case of Wallace vs. Simpson , 1870, has been referred to as sustaining the English rule. But an examination of that case shows that it was decided on wholly different grounds. That the proposition " that when one of two candidates is ineligible the votes given for him are of no effect, and the other candidate is elected," was maintained by but one member of the subcommittee, Mr. Cessna, while it is expressly stated that the other two members, Mr. Hale and Mr. Randall, dissented from the proposition.— (Cont. El., ■ 1865 to 1871, page 731.) In the case of Zeigler vs. Rice, of Kentucky, 1870, it is decided that even where there is notice of ineligibility of the successful candidate this does not entitle the minority candidate to take his seat. The majority report of the committee in this case states: " The committee are well satisfied that the acts of the contestee were well understood by the voters of said district at the time contestee was voted for, but do not agree with contestant that as contestee was ineligible, the candidate who was eligible is entitled to the seat."— (Cont. EL, 1865 to 1871, page 884.) The removal of disabilities by the action of Congress, of the same nature as these un- der which Vance labored, is a decision in the strongest possible terms that such votes are not nullities; that the election of such candidate is not void but voidable only. For if they were nullities, and the election of such candidate void, then Congress, by such action as it has taken, has elected members to one of its own houses without reference to the action of the people. As an example, we may refer to the case of R. R. Butler, of Tennessee (Contested Election Cases, 1855-"71, page 464) ; also case of Young, of Georgia. But suppose that it is admitted that the English rule is applicable here, do the facts in this case bring it within that rule? Were the votes for Vance cast in willful obstinacy for a candidate the voters knew, or had good reason to believe, would not be entitled to take his seat? The memorialist avers that the fact that Vance was known to be ineligible is not controverted. That his ineligibility was a matterof public notoriety in North Carolina is doubtless true, and that it was known to most if not all of the mem- bers of the legislature is qnite probable; yet no evidence has been presented to the committee proving this fact, or that notice of his disqualification was given at the time the vote was taken. Let us even go one step further, and suppose that the evidence on this point was clear and explicit; are we not justified in believing that those who voted for Vance did so in good faith, believing that his disabilities would be removed after the election by the action of Congress, basing this presumption on the precedents which had recently been set in similar cases? Nor is, this by any means an improbable hypothesis, but accords much better with the facts presented to the committee than the hypothesis that the votes given for Vance were cast in "willful obstinacy" for a candidate they knew would not be admitted to his seat. If they were given under the impression that these disabilities would be removed, then, although unavailing, they cannot be rejected from the count. And the ■committee would again refer to the report of the committee in the case of Yulee vs. MaUory, of Florida, 1852, where the following language is used which is applicable to this view of this case: "If blank votes are beyond a doubt a nullity; if the resolution is to be regarded of no effect, and we are brought to the question, under these circumstances, whether Mr. Yulee is duly elected, it seems to us diflacult'to maintain the aflBrmative of that propo- sition upon the facts before us. If the members were misled on both these material points by assuming that their previous doings afforded safe and certain rules of action, then they were misguided by what they had a right to consider as authority, and must have acted under a misconception of right, which stood, as they supposed, unques- tioned. If this be so, they stand substantially in the condition of an elector who votes for a person disqualified, believing him to be qualified. The.vote in such case, though unavailing, is not rejected from the count."— (Contested Election Cases, 1864-'65, page 610.) Under the English rule, it is the fact that the voters knowingly and purposely throw away their votes that lays the foundation for saying they assent to the election of the minority man. But no such purpose can be predicated of the legislature of North Car- olina. They did not know that their votes for Vance would be thrown away. They did not purposely throw them away, because Congress had in numerous cases previously 344 SENATE ELECTION CASES. removed disabilities of a similar character from those elected and allowed them to hold their offices. Nearly all of the officers elected in this State in 1868 had their disabilities removed by the act of June, 1868, and vrere allowed by virtue thereof to enter upon and discharge the functions of their respective offices. The same act removed the disabilities of a large number of persons elected in Alabama in February, 1868, and at the close of the section contains this sweeping clause: "And also all officers-elect at the election commenced the 4th day of February, 1868, in said State of Alabama, and who have not publicly, declined to accept the offices to which they were elected." — (15 Stat, at Large, 366, 2.) These were certainly sufficient to raise in the minds of the members of the legislature of North Carolina who voted for Vance the belief that his disabilities would be removed and that he would be allowed to take his seat. In fact, they had good right to believe that this was the rule, and the opposite the exception, especially where the persons so elected were known to favor the restoration of order and obedience to law. Again, it may be fairly argued that the fourteenth amendment to the Constitution did not disqualify Vance to be elected, but only to hold the office of Senator in case his disa- bility should not be removed. Upon this interpretation his election was voidable only, and not void, and, as a consequence, Abbott was not elected. But even if this interpre- tation is erroneous, it is one the legislature of North Carolina might (and as nothing to the contrary is shown, we are to presume did) honestly entertain (especially in view of the action of Congress above referred to), and if they elected Vance under a mistake in law, his election was not void, but only voidable. Although the committee have referred to the decisiQns of the courts and legislative bodies of this country bearing upon this case, the tenor of which is believed to be de- cidedly adverse to the claim of the memorialist, yet this appears unnecessary, as a care- ful examination of the act of Congress of July 25, 1866 (which has already been alluded to on one point), wljen applied to the facts in this case, would seem to be an effectual bar to the claim of the memorialist. The first section of this act is as follows: "That the legislature of each State which shall be chosen next preceding the expira- tion of the time for which any Senator was elected to represent said State in Congress shall, on the second Tuesday after the meeting and organization thereof, proceed -to elect a Senator in Congress, in the place of such Senator so going out of office, in the following manner: Each house shall openly, by a viva voce vote of each member present, name one person for Senator in Congress from said State, and the name of the person so voted for who shall have a majority of the whole number of votes cast in each house shall be entered on the journals of each house by the clerk or secretary thereof; but if either house shall fail to give such majority to any person on said day, that fact shall be entered on the journal. At 12 o'clock meridian of the day following that on which proceedings are required to take place as aforesaid the members of the two houses shall convene in joint assembly, and the journal of each house shall then be read, and if the same person shall have received a majority of all the votes in each house, such person shall be declared duly elected Senator to represent said State in the Congress of the United States; but if the same person shall not have received, a majority of the votes in each house, or if either house shall have failed to take proceedings as required by this act, the joint assembly shall then proceed to choose, by a viva voce vote of each member present, a person for the purpose aforesaid, and a person having a majority of all the votes of the said joint assembly, a majority of all the members elected to both houses being present and voting, shall be declared duly elected; and in case no person shall receive such majority on the first day, the joint assembly shall meet at 12 o'clock me- ridian of each succeeding day during the session of the legislature, and take at least one vote until a Senator shall be elected." The passage of this act was evidently intended to be an exercise of that authority conferred upon Congress by Article I, section 4, of the Constitution, so far as the same relates to the election of Senator. This section provides that — "The times, places, and manner of holding elections for Senators and Representatives shall be prescribed by each State by the legislature thereof; but the Congress may at, any time by law make or alter such regulations, except as to the places of choosing ' Senators." The words "such regulations" in the latter clause refer to "the times and manner of holding elections" in the first clause ("places" being expressly excluded) ; therefore, by virtue of this provision, Congress has power — so far as the election of Senators is concerned — to prescribe the times and manner of holding elections. The act of July 25, 1866, is evidently intended to do this, and therefore has taken it out of the power of the legislatures of the States to determine either the times or manner of holding these elec- tions so long as this act remains unrepealed. In regard to the time fixed there is no difference of opinion. What then is pi escribed RANSOM VS. ABBOTT. 345 in regard to the manner of holding the election in the first provision of the section? ' ' EsMjh bouse shall openly ' ' do what? ' ' Name one person for Senator in Congress from said State." How? "By a viva voce vote of each member present." If we give to each word of this clause its full force and effect, consistent with the other portions of the provision, what are we to understand by ' ' each member present ? ' ' Does it signify those voting only, or has it some other meaning? If we refer to the second provision of the section we find the words ''present" and "voting" both used in the same clause, showing clearly that the two are intended to have different significations. But it is insisted that if we give this construction to the provision of the act in relation to the election by the two houses, it is equivalent to saying that to obtain an election every member present must vote, thus placing it in the power of a single member so present to defeat an election on that day. If, on the other hand, it only applies to those voting, what force and effect do we give to these words? It is manifest that the second provision of this section was intended to take it out of the power of a small majority in one house, by preventing an election, to defeat the election of a candidate in favor of whom there is a majority of the aggregate of the two houses, and as the usual method of prcjceeding is changed by this provision, it was neces- sary to prescribe what should constitute a quorum. A majority of all the members elected to both houses are required to be present to constitute this quorum, and the person elected is required to have a majority of all the votes of said joint assembly. What shall constitute a quorum in each house on the day the vote is taken separately is left to the constitution- and laws of the State. The constitution of North Carolina requires a majority of each house to be present; it follows that the provisions of the two parts of the section are substantially the same. For upon what grounds can we supjiose that Congress would require a majority of a quorum on the second day to elect, and not on the first? Your committee is therefore satisfied that Congress, in the passage of this act, contem- plated and intended that in the election of Senators, whether under the first or second provisions of this section, to be valid, it should appear that a quorum was present and voting. It is, moreover, evident fiom the very wording of this act that Congress did not even contemplate the possibility of an election by a minority under any circumstances, but by this act imply the opposite; for in the provision relating to the election by the two houses, separately, it is required that "the name of the person so voted for, who shall have a majority of the whole number of votes cast in each house, shall be entered on the journal of each house." This language is plain and easily understood. If any person receives a majority of the votes cast his name is to be entered on the journal; nothing is said of those in the minority; no evidence is to be preserved of the fact that they were known in the election; nothing is required to be said about the number of votes that even the successful candidate receives; the simple fact that Mr. A. received a majority of all the votes cast is all that is required. The next day_^the two houses shall convene in joint asssembly and compare journals, and if the same name and same fact in regard to him is on each, he is to be declared duly elected. But if neither can- didate receives a majority the first day, i}he fact is to be entered on the journal; nothing more is required; no person has received a majority, and there is no use to preserve upon the record anything but that fact; yetit is possible that one out of three candidates may be known to be ineligible by those voting for him. If the second out of three candi- dates was disqualified, and those voting for him knew it, the case would be much more plausible than the present one. Yet this act contemplates no such contingency. Your committee is aware that this inference has no binding force; it is only alluded to to show that the idea of a minority candidate being entitled to his seat under any circum- • stances is at war with the very spirit of our laws and institutions, and that the principle involved in this case is at variance with the spirit of the law upon which the memorial- ist founds his claim to a seat. It has been suggested that there is a distinction in respect to the operation of the rule insisted on by the memorialist, between a popular election, under our liberal system of suffrage, for a member to the House of Eepresentatives by ballot and an election of a Senator hyviva voce vote of the members of a legislature. Your committee are inclined to think this is correct, but that the distinction beats against the claim of the memorialist instead of in favor of, it. _ The number of persons entitled to vote at a popular election is not fixed and definite, and hence it is impossible to have a quorum or anything answering thereto. There is no power to compel attendance. This is, "and necessarily must be, wholly voluntary; therefore it is necessary that those attending should have the right to elect, where the election is free, and are prevented from attending by force, intimidation, or fraud. If a candidate receiving the majority is disqualified, and the votes cast for him are declared nullities (as claimed by the memorialist), the remaining votes are as effectual to elect as it" every voter of the district had been present; and if those who voted for the can- 346 SENATE ELECTION CASES. didate receiving the majority had not been present at all, the election nevertheless vrould have been valid. But the rule is whoUy different in legislative bodies. The number is fixed and definite, a quorum can be and is required to act, and the presence of a less number is not effectual. Had but the thirty-two who yoted for Abbott been present in the house at the time the vote was cast, we do not suppose any one would contend that he had even a shadow to base his claim upon ; yet this number v^ould be sufficient to elect in a district of a thousand voters if no others voted. We therefore coincide in the view that there is a difference, and that; even if the English rule was ap- plicable in the case of an election of a member to, the House of Eepresentatives, it would by no means follow that it was applicable to the election of a Senator where the number voting, of the votes counted, is less than a quorum. Your committee, therefore, after a full hearing of the case and examination of the authorities, come to the conclusion that the Hon. Joseph C. Abbott, of North Carolina, is not entitled to a seat in the United States Senate, and recommend the adoption of the following resolution: Resolved, That Joseph C. Abbott, not having received a majority of the votes cast by the North Carolina legislature on the second Tuesday in November, 1870, for the office of Senator of the United States, is not entitled fo a seat in- said United States Senate as such . Senator. O. P. MORTON. JOHN A. LOOAN. A. G. THURMAN. JOSHUA HILL. The following statement of Mr. Ransom, of North Carolina, is herewith presented with the report of your committee: " Immediately after the election in North Carolina in 1870, which resulted in the tri- umph of the Democratic-Conservative party, the question of the election of a United States Senator became one of great, exciting interest throughout the State, and very soon assumed a sectional (State) character. Governor Vance, Governor Graham, and Judge Merrimon were the persons most prominently brought forward by the western gentlemen and papers. The "west" (of the State of North Carolina) insisted most earnestly that their section, of right, ought to have the Senator. Article after article was written in the western papers, claiming the Senator for the west, and there was great feeling on the question when, in November, 1870, the legislature met. ' ' Immediately on its meeting Mr. Jarvis, an eastern member, was elected speaker of the house, and this event gave western gentlemen still further ground to claim the Sen- ator. Mr. Jarvis, in caucus, beat Mr. Welch and Colonel McAfee, both western gentle- men. ' ' The Democratic caucus met. "Vance's, Merrimon's, Graham's, Warren's, and Ransom's names were before the caucus. ' ' The balloting at first was entirely indecisive. ' ' While the Democratie strength in the legislature was from 105 to 110, only 94 mem- bers attended caucus. "On the eighth ballot Merrimon was ahead, receiving 35 votes; Vance and Ransom about 25 each, and Graham some 9 or 10. ' "Merrimon's vote then declined and Graham's vote went up; when Ransom's strength was developed and his vote began to go up. "The balloting continued, and finally, Ransom being ahead, Vance's vote went upon the twenty-sixth ballot. Ransom then having 42, Vance 39, about 10 for Graham, and 3 scattering, whentjraham's friends, western men, went to Vance, and the last ballot was — for Vance, 48; Ransom, 46. Vance was nominated, the vote standing 48 for Vapceand 46 for Ransom. "After the twelfth ballot Ransom had been ahead of Vance until the twenty-sixth ballot, and on the twenty-seventh the Graham men went to Vance and elected him. ' ' There were about 35 Democrats from east of Raleigh, and about 70 or 75 west; but only 94 at caucus. " Vance's great personal popularity accounts for his running ahead of Grahalm and Merrimon, both western men; and his popularity and position in the west, he living in the stronghold of the^western Democracy, beat Ransom. "Had Vance's disability been removed he would have beaten all his opponents with- out a struggle; while it is simple candor to say that Ransom would beat any other man except Vance. The last election proves this. ' ' Vance's nomination was then owing to his being a western man and his great personal popularity, both causes contributing to his nomination; his popularity beating Graham and Merrimon, and his position and popularity together beating Ransom. " Merrimon had no disabilities. "Graham was laboring under disabilities. KAJNiSUM ViS. ABBOT*. 347 " DISABILIIIES. "Before the caucus met, aibd at the caucus, it was generally stated that Vance's disar- bilities would be removed and that he would be admitted. It was generally argued and believed that many influential Eepublicans of the North had assured Vance that his disabilities would be removed, and Vance himself expressed no doubt of it. His friends, by authority, stated in caucus that Vance would resign unless admitted. "ebmoval of disabilities. "On the 20th of April, 1868, an election tookplace in North Carolina for all the State officers — governor, lieutenant-governor, secretary of state, treasurer, j udges of the supreme court, judges of the superior courts, the probate judges, members of the legislature, and all county officers, sheriffs, &c. . "On the 25th June, 1868, two months after this election. Congress removed the polit- ical disabilities of most of these officers, nearly all of whom were under disability when elected. ' ' Governor W. W. Holden and Mr. Thomas Ashe and Mr. D. R. Goodloe were the can- didates for governor— Holden, Eepublican; Ashe, Democrat, and Goodloe, Eepublican. Goodloe was eligible, and he received only 300 out of 170,000 votes. The fact that he (Goodloe) only was eligible, and the others not, was fully discussed in the papers and canvass. "On the 25th of June, as aforesaid, Todd E. Caldwell, lieutenant-governor, was also relieved. "And so were Eichmond Pearson, chief-justice; Eobert P. Dick, associate justice; Thomas Settle; associate justice; Edwin G. Read, associate justice supreme court. And so with many of the judges of the superior courts: Daniel L. Eussell, Anderson Mitchell, C. E. Thomas (now member of Congress), Judge Logan, &c. "The superintendent of public works, C. L. Harris; W. L. Adams, auditor of public accounts; Joseph W. Holden, speaker of the house of representatives, and nearly every white member of the legislature of 1868, which actually elected Mr. AlDbott to the Senate when he was admitted, and, as before said, nearly if not all of the county officers in the State — all, all had their disabilities removed after the election. "And in the same act of June 25, 1868, it is declared in section 2, page 581 (Congres- sional Globe, part 5, 2d sess. 40th Cong.): HI* * * And also all officers-elect at the election commenced the 4th day of Feb- ruary, 1868, in said State of Alabama, and who have not publicly declined to accept the offices to which they were elected. ' "This is the concluding sentence after the enumeration of a long list of persons in Alabama. "GOVEENOE VANCE AND SENATOR POOL. ' ' About the 4th of March, 1871, great aiLxiety was felt by the legislature as to Vance's prospects, and Mr. Martin, member of the legislature from Carteret, introduced a reso- lution looking to Vance's resignation and another election. There was great interest on this question, and a caucus of the Democrats called with a view to settle the matter, when, on the 17th of March, 1871, Mr. Cowles, a senator in the North Carolina legisla- ture, read from his place in the senate this letter from Hon. John Pool, now Senator in Congress, and this assurance quieted the legislature, and no action was taken. "This letter is herewith presented. "A. C. Cowles, esq., the senator from Yadkin County, recently wrote to Hon. John Pool at Washington in regard to the prospect of Governor Vance obtaining his seat, and received the follovring answer: ' ' ' Senate Chambee, " ' Washington City, 3Iareh 17, 1871. " ' My Deae Sie: You ask me as an old friend to tell you candidly if Governor Vance is likely to be relieved. The Senate committee has just reported a bill for his relief, and it will pass next December, if not before. In the present state of things here it may not be acted upon this session, as Congress refuses to take up any business except some few special matters. But even at this disadvantage Vance stands a good chance of being relieved before we adjourn. Many Senators heretofore opposed will vote for him now. If Congress remains in session two weeks he will be relieved at this session. The House would pass the bill by an immense majority. I hardly have a doubt as to his final relief early in the next session. " 'I have not time to write more fully. "'Very truly, &c., "'JOHN POOL.'" 34^ ■ SENATE ELECTION CASES. VIEWS OF THE MINOEITY OF THE COMMITTEE ON PKIVILEGES AND ELECTIONS. Febeuaby 28, 1872.— Ordered to be printed. Mr. Carpenter asked and obtained leave of the Senate to present the following as the views of the minority : A minority of the Committee on Privileges and Elections, to whom was referred the memorial of Joseph C. Abbott, who claims to be entitled to a seat in this body as Sen- ator from North Carolina, for the term commencing on the 4th day of March, A. D. 1871, respectfully submit the following report: The gravity of the question now for the first time directly presented to the Senate, and the fact that the decision which shall be made in this case Will be a precedent, render it desirable that the question should be fully considered ; and believing that the conclusion arrived at by the committee is erroneous in law, we present to the Senate the reasons which have compelled us to dissent. The Constitution of the United States, Article I,^section 5, provides: "Each House shall be the judge of the elections, returns, and qualifications of its own members." The duty cast upon the Senate bythis provision of the Constitution is judicial in char- acter. We may not inquire or consider what party interests demand; whether it would appear impartial to decide against a political friend, or whether a decision in his favor would be condemned in political circles. The question to bedetermined is one of strict right, depending upon legal principles, as settled by former decisions, parliamentary and judicial ; and we have no more right than a judge Upon the bench to turn away from the law to consider the political or partisan interests involved in the case or to be affected by the decision. The case is this: On the 4th of March, 1871, the term of service of Joseph C. Abbott as Senator from North Carolina expired. On the second Tuesday of its session, in No- vember, 1870, the day prescribed by law, the two houses of the legislature of North Caro- lina proceeded to the election of a Senator from that State for the succeeding term of six years, commencing on the 4th day of March, 1871, with the following result: In the house of representatives: Votes. 2ebulon B. Vance received 63 Joseph C. Abbott received 1 32 Scattering 10 Members present - 105 In the senate: Zebulon B. Vance received ^. 32 Joseph C. Abbott received 11 Scattering 5 Members present , 48 these numbers constituting a quorum of each house of the legislature respectively. On the following day the two houses, in the usual form, declared that Vance had re- ceived a majority of the votes in both houses, and was duly elected for the said term. Had Vance been qualified to serve, there would be no question as to his right. But he was disqualified by the fourteenth amendment to the Constitution of the United States, for the reason that he had been a member of the Congress prior to the rebellion, and, as such member, had taken an oath to support the Constitution of the United States, and during the rebellion he had acted as colonel in the rebel army, and taken an oath of alle- giance to the so-called Confederate States of America; and he had acted as governor of the rebel State of North Carolina from August, 1862, to April, 1865; and this disquali- fication was notorious — known to all the members of the legislature at the time of his election, and to all the people of that State. The fact that Vance was known to the members of the legislature who voted for him for Senator to be disqualified is not contro- verted. On the contrary. General Eansom, who claims to have been subsequently elected, upon the resignation of Vance, was heard before your committee, and ftankly admitted that the fact that Vance was disqualified was well known to all the members of both houses of the legislature at the time of his pretended election. It is adinittedon all hands that the election which was held, as before stated, conferred no right upon Vance to a seat in this body; but Abbott, who was qualified, and who re- ceived the next highest number of votes cast, and a majority of all the votes cast^for qualified candidates in both houses, insists that he was elected at said election, and is now' entitled to the seat; and this is the question to be determined. The Constitution, Article I, section 4, provides: "The times, places, and manner of holding elections for Senators and Kepresentatives RANSOM VS. ABBOTT. 349 shall be prescribed in each State by the legislature therepf, but Congress may at any- time, by law, make and alter such regulations, except as to the places of choosing Sen- ators." The election of Senators is thus, by the Constitution, committed to the regulation of the respective States, except so far as Congress, under this provision,.may legislate upon the subject. The only act of Congress applicable is that of July 25, 18ti6, as follows: ' ' That the legislature of each State which shall be chosen next preceding the expira- tion of the time for which any Senator was elected to represent said State in Congress shall, on the second Tuesday after the meeting and organization thereof, proceed to elect a Senator in Congress in place of such Senator so going out of office, in the following manner: Each house shall openly, by a viva voce vote of each member present, name one person for Senator in Congress frorn said State, and the name of the person so voted lor who shall have a majority of the whole number of votes cast in each house shall be en- tered on the journal of each house by the clerk or secretary thereof; but if either house shall fail to give such majority to any person on said day, that I'act shall be entered on the journal. At 12 o'clock meridian of the day following that on which proceedings are required to take place, as aforesaid, the members of the two houses shall convene iu jomt assembly, and the journal of each house shall then be read, and if the same person shall have received a majority of all the votes in each house, such person shall be declared duly elected Senator to represent said State in the Congress of the United States; but if the same person shall not have received a majority of the votes cast in each house, or if either house shall have failed to take proceedings as required by this act, the joint assembly shall then proceed to choose, by a viva voce vote of each member present, a per- son lor the purpose aforesaid, and a person having a majority of all the votes of the said joint assembly, a majority of all the members elected to both houses being present and ^ voting, shall be declared duly elected; and in case no person shall receive such majority on the first day, the joint assembly shall meet at 12 o'clock meridian of each succeeding day during the session of the legislature, and take at least one vote until a Senator shall be elected." — (U. S. Laws, vol. 14, page 253.) This act was intended to assure the election of a Senator by the action of the two houses separately, or in case of a failure to elect in that mode, then by joint assembly of the two houses commencing on the following day and continuing day after day until a result should be reached. This act deserves a careful consideration, because it is insisted that the conclusions herein arrived at are in conflict with its provisions. In regard to election by the houses separately it is provided: ' ' Each house shall openly, by a viva voce vote of each member present, name one person for Senator in Congress from said State, and the name of the person so voted for who shall have a majority of the whole number of votes cast iu each house shall be entered on the journal of each house by the clerk or secretary thereof" It wUl be perceived that this act does not attempt to determine what shall be a quorum of each house, but leaves that question to be determined by the constitution and laws of the State. By the constitution of North Carolina it is provided: - "Neither house shall proceed upon public business unless a majority of all the mem- bers are actually present." It is not necessary that all the members should participate in the transaction of public business by either house, but merely that a majority of all the members should actually be present in each house. But in providing for an election by the joint assembly of the two houses the act of Congress does provide that in such election— "The person having a majority of all the votes of the said joint assembly, a majority of all the members elected to both houses being present and voting, shall be declared duly ' elected. ' ' The diiference in these two provisions is not one of phraseology merely, but of sub- stance. In the election by the two houses separately in North Carolina, if a majority of the members elected to each house are actually present, the person who shall receive the highest number of votes cast, though that may be less than half of a constitutional quo- rum, is to be declared elected; but in the election by the joint assembly it is not enough that a candidate should receive a majority of all the votes cast, but he must receive a majority of " all the votes of the said joint assembly — a majority of all the members elected to both houses being present and voting. " These provisions are so materially different that the variation cannot be regarded as accidental, and the reason for the dis- tinction is, no doubt, that the act intended to leave the matters of a quorum and the proceedings of the houses acting separately to be regulated by the constitution and laws of the State, but the act intended to provide what should be necessary to constitute a quorum and make an election in the joint assembly — a body created by the act, and whose proceedings might not be regulated by the constitution of the State. It is only necessary iu this case to consider the effect of the proceedings in the two houses on the first day, because it is upon those proceedings Mr. Abbott Ibunds his claim. 350 SENATE ELECTION CASES. If he was legally elected on that dajr the subsequent proceedings by the joint assembly could not affect his right, nor can such claim be affected by any subsequent proceedings of the legislature. His claim depends upon the legal effect of what took place in the two houses on the first day of the election. It is insisted that the provisions of the act in relation to election by the two houses " and by the joint assembly are substantially the same, because it is provided by the act that — ' ' Each house shall openly, by a viva voce vote of each member present, name one person for Senator, &c., and the name of the person so voted for who shall have a majority of the whole number of votes cast in each house shkll be entered on the journal, " &e. And hence it results that to be elected on the first day the person must have a major- ity of all the members present. But this construction, which is equivalent to saying that, to make an election, everymember must vote, would put it in the power of a single member of the legislature to defeat an election on that day. This could not have been intended, and that clause must be regarded as relating merely to the manner of voting; and if a number of votes are cast for a qualified candidate, and the other members refuse to vote at all, then the person ' ' who shall have a majority of the whole number of votes cast" must b^ deemed elected. The provision concerning the joint assembly is materially different. There it is pro- vided: " The joint assembly shall then proceed to choose, by a viva voce vote of each member present, a person for the purpose aforesaid, and a person having a majority of all the votes of the said joint assembly, a majority of all the members elected to both houses being present and voting, shall be declared duly elected. ' ' The clause " a person having a majority of all the votes of the said joint assembly, a ma- jority of all the members elected to both houses being present and voting, ' ' undoubtedly requires that to make an election a candidate must receive a number of votes greater than half of the majority of both houses. The difference between the two provisions is this : if a maj ority or quorum of each house are actually present when each house proceeds to the election on the first day, the person receiving the highest number of votes cast is elected, though receiving less than half of a majority. But in the joint assembly it is necessary to an election that a candidate should receive the votes of more than half of a majority of both houses. It is a well-established rule for construing statutes that every clause, phrase, and word must be deemed to have been added to the statute for the purpose of accomplishing some end that would not be accomplished without it. Dwarris on Statutes CPotter's edition, 1871), 198, says: "It is a safe method of interpreting statutes to give effect to the particular words of the enacting clauses. For when the legislature in the same sentence uses different words the courts of law will presxime that they were used in order to express different ideas. So, if there be a material alteration in the language used in the different clauses, it is to be inferred that the legislature knew how to use terms applicable to the subject- matter. ' The several inditing and penning of the different branches, ' said the judges in Edrick's case, ' doth argue that the maker did intend a difference of the purviews and remedies.'" To the same effect, see Eex vs. Bolton (5 Barn, and Cres., 74). Applying this familiar precept to the statute before us, it must be held that the pro- vision in regard to an election by the joint assembly requiring a person to receive " a majority of all the votes of the said joint assembly," which is not found in the act in relation to an election by the two houses acting separately, was added for the purpose of requiring in one case what was not necessary in the other. It may be said that the same thing ought to be required in the one case as in the other, and that the act of Congress ought not to be so construed as to permit an election by the minority in one case and to forbid it in the other. But the answer to this is obvious. Before the passage of this act the States elected Senators by various methods; some by a joint assembly of both houses and some by the action of the two houses separately. In those States which elected by the latter method the houses might sometimes disagree, and thus defeat an election. It was the manifest intention: of the act of Congress to afford to a legislature the opportunity of electing a Senator by the separate action of the houses, and in doing so to leave the whole detail of the election to be regulated by the parliamentary usage of the State. But in providing for an election by the joint assembly, a method not in use in some of the States, it was necessary to provide what should be a quorum, and what should be necessary to an election. As the act of Congress does not affect the question under consideration, resort must be had to the precedents and authorities, English and American. It is admitted that when the electors vote for a disqualified candidate, in ignorance of his disqualification, the election is void, and must be remitted to the elective body. lANSOM VS. ABBOTT. 351 But it is insisted that where, as in this case, the electors (the members of the two houses) had full knowledge of the disqualification, votes cast for such person are considered as thrown away, and the qualified candidate receiving the next highest number of votes, and a majority of all votes cast for qualified candidates, is elected. If this proposition IS weU grounded, Mr. Abbott is entitled to a seat; and this is the precise question upon ■ which we are to consult the authorities. Mr. Abbott furnished to your committee a printed brief containing references ta and quotations from the decisions upon this question from the earliest times, which quota- tions are embodied in this report. Rogers on Elections (ed. 1847, ch. 7) says: " The principle upon which courts of law have acted in such cases is broad and uni- form, and is thus laid down, and the authorities all cited by Lord Ellenborough in pronouncing the judgment of the Court of King's Bench in the case of Eex vs. Hawkins (A. D. 1808), 10 East, 211, which judgment was affirmed upon appeal to the House of Lords (2 Dow, 124). "The general proposition that votes given for a candidate after notice of his being ineligible are to be considered the same as if the person had not voted at all is supported by the cases of The Queen vs. Boscawen, E. T., 13 Anne, 1713; The King vs. Withers, E. T., 8 Geo. II, 1835; Taylor vs. Mayor of Bath, M., 15 Geo. II, 1742, all of which are cited in Cowper, 537, in King vs. Monday (A. D. 1777). In the fiit, Boscawen and Roberts, the two candidates, had an equal number of votes, but because Boscawen was incapable, the votes given ibr him were considered as thrown away, and the other duly elected. In the second case, Withers had five votes out of eleven, and the other six refusing to vote at all, the court held Withers duly elected, and the six who refused to vote were virtually consenting to the election of Withers. In the third case, Taylor, Biggs, and Kingston were candidates. Biggs was objected to as a disqualified person, notwithstanding which Biggs had 14 votes, Taylor 13, and Kingston only 1. Then Lord Chief-Justice Lee, at nisi priua, directed the jury that if they were satisfied that the electors had notice of Biggs's want of qualification they should find for the plaintiff (Taylor), because Biggs, not being qualified, was to be considered as a person not in esse, and the voting for him a mere nullity. The jury found for the plaintiff, and the court, on a motion for a new trial, agreed vrith the law as laid down by Lord Chief- Justice Lee, and refused a new trial. The same principle has been acted on in the case of Claridge vs. Evelyn (1821), 5 B. and A., 81, where an infant, having been elected to the office of clerk of a court of requests, notice was given at the time of his election of his ineligibility on the ground of nonage. An action was brought for a false return by the unsuccessful candidate, and a verdict given for the plaintiff, subj ect to the opinion of the Court of King's Bench. At the close of his judgment, after argument, Abbott, C. J., said: 'lam of opinion, therefore, that he (the infant) was ineligible; and duenoticeof his inca- pacity having been given to the electors at the time of his election, their votes were thrown away, and consequently there must be judgment for the plaintiff. ' {Vide also R. vs. Coe., Haywood on County Elections. 538; R. vs. Parry & Phillips (1787), 14 East, 549; R. vs. Bridge (1811), 1 M. & S., 76.) "Fife, 1 Luders, 435 (A. D. 1785-'90): General Skene was elected. Mr. H. gave notice at the poll that General Skene was incapacitated by reason of holding the offices of baggage-master to the forces and inspector of the roads, and petitioned upon those objections. The committee seated Mr. Henderson, on the ground that the novel crea- tion of one of the offices was notorious and within, Anne, c. 7, s. 625 (a). "Cockermonth (1717), 18 Journ., 673: The votes were, for Sir Wilfred Lawson 90, for Lord Percy Seymore 84. The former had been proved at the election to be under twenty- one years of age. The House seated Lord Percy Seymour. "Flintshire, 1 Peck, 526 (1802-1806) i The facts and decisions the same as in the case of Cockermonth. "Second Sonthwark (Clifford, 130, 1796): The former committee having resolved, 'that at the last election ibr the borough of Sonthwark G. W. Thellusson, esq., did act in violation of the statute of the 7 W. Ill, c. 4, whereby he is incapacitated to serve in Parliament upon such election,' and notice having been given of this resolution, the petitioner was seated with a minority of votes. "Second Canterl/iry (Clifford, 353): The first committee merely declared that neither of the sitting members was duly elected, and that the election was void. The second committee found specially that the first election was declared void for bribery and cor- rupt practices only; and having heard evidence that notice was given at the election of the ineligibility of the sitting members on account of bribery an^ corruption at the former election, and that copies of the opinions of three counsel, all stating that the sitting members were ineligible, were read, seated the petitioners with the minority of votes. (Kirkcudbright, 1 Luders, 72anfe, 72 et seq. ; Radnorshire, 1 Peck, 496; Leominster, 1 C. & D., 12; and 2 Dungarvon case K. & Ambl., 6). " Leominster (1827), C. & D., 1: Objection made that the candidate had declined to 352 SENATE ELECl'ION CASES. take the qualification oath when req.uested so to do. His return declared void and the petitioner seated." ^ Haywood on County Elections, 535, says: " It must he remembered, however, that in case a candidate laboring under disabili- ties should be returned, the election will be avoided on petition; and that if, before the election comes on, or a majority has polled, sufficient notice has been publicly given of his disability, the unsuccessful candidate next to him on the poll mast ultimately be the sitting member. * * * When the disabllitjr of the candidate is notorious, it should seem that it was not necessary to give notice to the electors." Eoe on Elections (ed. 1818), page 256, says; ' ' If there be no other candidate than the person incapacitated, the election will neces- sarily be void; bjitif, besides such incapacitated person, there be also one or more can- didates, it is a very important question whether, in consequence of the incapacity of the former, the electors are to be called upon to reconsider their choice, or whether they are to be represented by the second in number upon the poll, he in reality beingregarded the first by reason of the nullity of the franchise given to the other candidates. It will be seen that the latter proposition is that which constitutes the law in cases where misapplication of the franchise by the electors was willful, and therefore made in their own wrong." Male on Elections, 336, says: "If the election is made of a person or persons ineligible, such election is void either in toto or of one only, according as the ineligibility applies to all or one only, where that ineligibility is clear and pointed out to the electors at the poll. It has been held that the votes given to such ineligible candidate, after notice, are thrown away, and a competitor, though chosen by a smaller number of electors, has in such case been held duly elected. ' ' But such ineligibility ought to be clear, and grounded upon some known and settled rule of law. The same doctrine holds at law in the election to offices in which, after notice of the ineligibility of any particular candidate, the votes given to him are held to be thrown away . " Clerk on Elections, page 156, says: ' ' Whenever a candidate is disqualified from sitting in Parliament, and notice thereof is publicly given to the electors, all the votes given for such disqualified candidate will be considered as thrown away, and the other candidate, with a minority of votes, will be in position to claim the seat on proof of the existence of the disqualification, and that sufficient notice has been given of it to the electors. ' ' 2 Kyd on Corporations, 12, says: "Two requisites are necessary to make a good election: 1. A capacity in the electors. 2. A capacity in the elected. And unless both concur the election is a nullity. With respect to the capacity of the electors, their right is this: They cannot say there shall be no election,, but they are to elect; therefore, though they may vote and prefer one to fill an office, they cannot say such a one shall not be preferred; or by merely saying we dissent to every one proposed, prevent any election at all. Their rights consist in an affirmative, not a negative declaration. Consequently, there is no effectual means of voting against one man but by voting for another; and even then, if such other per- son be unqualified, and the elector has notice of his incapacity, his vote will be thrown away." Grant on Corporations, 109, says: ' ' When the ineligibility of a candidate arises from his holding or having held a public office, the people within the jurisdiction of such office are held in law to know and are chargeable vrith notice of such ineligibility." And on page 208 he says: "A disqualification, patent or notorious, at once causes the votes given for the candi- date laboring under it to be thrown away. ' ' Arnold on Corporations, 141, says: "The general rule may be stated thus: If a candidate for an office is ineligible at the time of the election by reason of any disqualification, and public notice of such disquali- ffcatioa is given at the election, all votes given for that candidate after such notice are thrown away; and if there are other eligible candidates, the one who has the largest number of votes will be duly elected. "—(Fi(i!e E, vs. Hawkins, &c.) In King vs. Parry (in 1811), 14 East., 559, it was ruled: ' ' When a candidate is disqualified for sitting in Parliament, and notice thereof is given to the electors, all votes given for such candidate will be considered thrown away, and the other candidate, with a minority of votes, will be in a position to claim the seat on proof of the existence of the disqualifications." In Bex vs. Blissell, upon a motion for a new trial. Lord Mansfield, interrupting coun- sel for the Crown, who was arguing that the disqnalifl cation was not notorious, said: ' ' Do you doubt that, if he is really disqualified, whether such disqualification is noto- KAJNSUM ViS. ABBOTT. 353 lions or not, the votes given for him are thrown away? In another jurisdiction, if the disqualification is notorious, it does more — it elects the other party; and of the law in this case you can have no doubt."— (Fide Heywood on Elections, 533-537.) In confirmation of this rule, we have a decision that to vote knowingly for a disquali- fied candidate is equivalent to not voting at all. In the case of Taylor vs. Mayor of Bath, quoted above — "All the judges held that the verdict was right. They held that, as the fourteen electors who voted for Biggs had notice that he was not qualified, their votes were thrown away; that when electors vote for a person not qualified it is the same thing as if they had given no votes at all, in which case it was not disputed that silence was a construct- ive consent." In Queen vs. Coaks (1855), 28 Eng. L. and E., 307, Lord C. J. Campbell said: "Now, it is the law — both the common law and parliamentary law — and it seems to me also common sense, that if an elector will vote for a man who he knOws is ineligible, it is as if he did not vote at all, or voted for a non-existent person; as it has been said, as if he gave his vote for the man in the moon. " In Oldknow vs. Wainwright (2 Burr., 1017), it was held that if a majority dissent from an election, but vote for nobody else, the election by the minority is good. This case related to an election of town clerk by mayor, aldermen, and common council. Whole number of electors 25, of whom, after due notice, 21 assembled. Nine electors voted lor Seagraves, while 11, protesting against any election at that time, refused to vote. As to the election of Seagraves, Lord Mansfield held: "Whenever electors are present and do not vote at all, they virtually acquiesce in the election made by those who do." In King vs. Monday (2 Cbwp., 538), Lord Mansfield said: "Upon the election of a member of Parliament, or a verderor, where the electors must proceed to an election, because they cannot stop for that day or defer it to another time, there must be a candidate or candidates; and in that case there is no way of defeating the election of one candidate proposed but by voting for another." In Southwark (Elections, 259), it is said— "That it is willful obstinacy and misconduct in a voter to give his vote for a person laboringuuder a known incapacity." — (See also Willcock, Cor., 215, 1827.) See also Regina vs. Hiomes, 3 Nevill and Perry, 48, 1839; S. C, 7 Adolph. and E., 960; and Regina vs. Pancras, 1857, 7 Ellis and B., 954. In Gosling vs. Veley, decided in 1848, 7 Q. B. R., 437, Lord Dunnan, C. J., delivering the judgment of the court, after citing cases, said: ' ' Where an elector, before voting, receives due notice that a particular candidate is dis- qualified, and yet will do nothing but tender his vote for him, he must be taken volun- tarily to abstain from exercising his franchise; and, therefore, however strongly he may in fact dissent, and in however strong terms he may disclose his dissent, he must be taken in law to assent to the election of the opposing and qualified candidate, for he will not take the only course by which it can be resisted; that is, the helping to the election of some other person. He is present as an elector; his presence counting as such to make up the requisite number of electors where a certain number is necessary; but he attends only as an elector, to perform the duty which is cast on him by the franchise he enjoys as elector; he can speak only in a particular language; he can do only certain acts; any other language means nothing; any other act is null; his duty is to assist in making an election. If he dissents from the choice of A, who is qualified, he must say so by voting for some other also qualified; he has no right to employ his franchise merely in prevent- ing an election, and so defeating the object for which he is empowered and bound to attend. And this is a wise and just rule in the law. It is necessary that an election should be duly made, and at the lawful time; the electoral meeting is held forthat pur- pose only; and but lor this rule the interest of the public and the purpose of the meeting might both be defeated by. the perverseness or corruption of electors who may seek some unfair advantage by postponement. If, then, the elector will not oppose the election of A in the only legal way, he throws away his vote by directing it where it has no legal Ibrce; and in so doing he voluntarily leaves unopposed, i. e., assents to the voices of the other electors. * * * It follows from these observations that the true ground of the decision is that stated by Lord Mansfield in the case first cited: ' Whenever electors are present and do not vote at all they virtually acquiesce in the election made by those who do.' * * * In case of Taylor vs. Mayor of Bath, the counsel, in argument, took the distinction between not voting at all and voting for the disqualified candidate. They admitted that silence might well be held to give consent, but that voting for the other candidate was an express negative; it was the only way, they said, of voting against one to vote for the other. But the court overruled the distinction. To vote for a person not qualified, they said, was the same thing as not to vote at all, which, it was admitted, would have been a constructive assent. It will not escape observation that, in all these S B C 23 354 SENATE ELECTION CASES. cases, the law required the concurrence of a majority of the electors present to make the election good. In none of them could it he stated as a tenable proposition that the mi- nority could hind the majority, or make a good election against their votes. In all of them, too, the numerical majority were de facto opposed to Iheelection made. Yet this fact was never considered as rendering the election in law other than" by an. actual ma- jority." Cushing's LexParliamentaria states the rule as follows: "Section 111. Of elections of, and votes given for, disqualified persons. "175. If an election is made of a person who is ineligible, that is, incapable of being elected, the election of such person is absolutely void, even though he is voted for at the saine time vnth others who are eligible and who are accordingly elected (see Male on Elections, 336) ; and this is equally- true whether the disability is known to the electors or not; whether a majority of all the votes or a plurality only is necessary to the election; and whether the votes are given orally or by ballot. " 176. The principle above applies equally where the constitution or law points out, among other eligible persons, the particular candidates to be voted for; in which case votes given for other persons are void. Thus the constitutions of Maine and Massachu- setts, providing that, in case of a failure to elect senators at the general election, the deficiency shall be supplied on the day of the meeting of the legislature by such senators as shall be elected and the members of the other branch from among the persons voted for and not elected as senators. All votes given on such occasions for any other than the candidate designated by law, though otherwise eligible, are thrown away. "177. In England, where a plurality only is necessary to an election, and where the votes are given orally, it is also held that if electors have notice of the disqualification of a candidate, every vote given for him afterward will be thrown away and considered as not having been given at all. (King vs. Monday, Cowper's Reports, 537; Eex vs. Hawkins, 10 East's Eep., 211, and cases there cited; 2 Dow's Eep., 124; Claridgecs. Evelyn, 5 Bamewall and Aid. Eep., 81; Eexes. Coe, Heywood on County Elections, 538; Douglas's Eep., 398, n. ; Eex vs. Blissell, Heywood, 537; Eex vs. Parry, 14 East, 549; Kex vs. Bridge, 1 Maule and Selwyn's Eep. , 76. ) The efiect of this rule is that not only ■will the election of a disqualified person be held void, but if such election takes place after notice of the disqualification is given to the electors, the candidate having the next highest number of votes will be elected. (Fife, 1 Luders, 455; Cockermouth, 18 Commons Jour., 672; Flintshire, 1 Peckwell, 526; Southwark, 2 Clifford, 130; Canter- bury, 2 Clifford, 353; Kirkcudbright, 1 Luders, 72; Eadnorshire, 1 Peckwell, 496; Leo- minster, Corbet, and Daniel, 1; Leominster, Eogers, App. IX; Cork County, Ejiapp and Ambler, 406; Belfast, Falconer, and Fitzherhert, 603; Eogers on Elections, 224. See also Male on Elections, 336; and Abington, 1 Douglas, 419.) This doctrine, however hard it may seem, is founded in the familiar principle thab every man is bound to know the law with reference to any act which he undertakes to do; and consequently that when an elector is apprised of the fact of disqualification of a candidate, and notwith- standing gives his vote for him, the elector tekes upon himself the risk of losing his vote, if his construction of the law turns out to be wrong. (Eogers on Elections, 226.) "178. In this country it is equally true that the election of a disquaUfied person is absolutely void; and in those States where a plurality elects and where the votes are given orally,, as in England, votes given for a candidate after notice of his disqualifica- tion are thrown away, and the candidate having the next highest number of votes is elected. "179. In reference to elections by ballot, in which secrecy is the distinguishing feat- ure, and in which, consequently, neither the returning oificers nor the electors them- selves are supposed to know for whom the votes are given until the result is declared, it seems not unreasonable to consider the votes for ineligible candidates to be thrown away in aU cases, and the opposing candidate elected, where the electors know, or must be presumed to know, the disability; and in all cases where there is no such actual or presumed knowledge to hold the whole proceeding merely void. "180. In reference to elections in which an absolute majority is requisite to a choice, and in which, consequently, the whole number of votes received is first to he ascer- tained, votes given for ineligible persons must of course he excluded from the enumer- ation, for the reason that as the whole balloting would be void and all the votes'exduded if they were aU. for such candidates, it would be preposterous to enumerate such votes where they constitute a part only of the votes given in. If, in consequence of such exclusion, the result of the elestion would be different from what it would otherwise be, the whole proceeding must perhaps be held void or valid according as the electors have actual or personal knowledge of the ineligibility of the persons for whom the excluded votes are given. ' ' To the same effect see "Wilson's Digest of Parliamentary Law, pages 107-114. ' Angell and Ames on Corporations, page 98, n. 3, say: "If the assembly be duly convened, and the me^ority vote for an unqualified peiaon. ' HANSOM VS. ABBOTT. 355 after notice that he is not qualified, their votes are thrown away, and the person having the next majority, and not appearing to be disqualified, is duly elected." This subject has been discussed at different times in the legislature Of Massachusetts, and it has been uniformly decided that votes given for candidates constitutionally ineli- gible should be regarded the same as blank votes. In 1843 an efibrt was made to change this parliamentary rule, and a majority of the committee -submitted a report, accom- panied by. a resolution, to the effect that it was ' ' not in accordance with the constitution and laws for, the two branches of the legislature to reject in making up the count the ballots cast for ineligible candidates." A minority of the committee submitted an adverse report, saying: "The fact that the votes given for ineligible candidates, v^hen the two houses have met in convention for the purpose of filling vacancies in certain offices, have been rejected from the count, is of long standing; and that no evil has resulted from such practice is Of itself a sufficient reason why a different rule should not be established. It is time enough to provide a remedy when an evil is found to exist, and not in anticipation of an evil. This it is believed is a safe course in all cases. * * * The practice of reject- ing blank pieces of paper, although they may have the form and shape of the actual votes which are cast, is believed to be uniform everywhere. The reason for the rejection of such paper is that it is not a voice given and numbered; that no one is designated who can be elected. "It is, however, no less an expression of dissatisfaction to the candidate voted for by other persons, on one side or the other, than it would be if it bore the name of an imag- inary being or a person ineligible. Inboth cases it is not a vote and should not so be treated. So far as precedents can be found, the practice of rejecting from the count votes cast for an ineligible candidate is not peculiar to the convention of the two houses in the Massachusetts legislature. It has obtained more or less in the House of Repre- sentatives of the United States and in the House of Commons in G-reat Britain. * * * Inasmuch as the custom has obtained, for aught that appears, from time immemorial to reject such votes, the undersigned take leave to submit that the proposed resolution of the majority of the committee is uncalled for, and that no further action be had on such order." The house laid the resolution of the majority on the table, thus in effect adopting the report of the minority.— (Cushing's Reports of Contested Elections in Massachusetts, page 499.) The subject was again discussed, and the decision reaffirmed, that votes cast for in- eligible candidates should be thrown away. In 1849 Mr. Slade was returned as the duly elected representative of the town of Somerset, and his seat was contested for the reason, among others, that a ballot for Nathaniel Morton, of Taunton, for member of Congress, was thrown out by the judges of election. The committee, in their report declaring Mr. Slade lawfully entitled, discussed this question as follows: "The policy of the law requires that such a construction should be put upon all proceedings at elections as to make.such proceedings valid rather than nugatory. An election is always attended with trouble, inconvenience, and expense, and should not be set aside for light or frivolous causes. If votes cast by mistake for persons not eli- gible are to be counted, then the intention and will of the voter is defeated; if, on the other hand, such votes are willfully put into the ballot-box, the person who thus votes indiQates so clearly his disregard of the value of the elective franchise that it is only a deserved punishment for his delinquency jto derive his vote of all weight and infiuence at such election. By so doing a voter is not deprived of any legitimate exercise of his right, because he can always manifest his opposition to any one candidate by voting for some other. — (Rex vs. Monday, Cowper, Lord Mansfield said the only way of voting against one was to vote for another. ) "Finally, it seems to the committee that there is no reason why a person who votes for an ineligible candidate should not be put upon the same footing with one who does not vote at all, as in both cases the parties show a disposition to prevent an election, and both of them show an unwillingness to perform their duty by aiding to promote those elections which are absolutely essential to the existence of the government. For if every voter refrained wholly from voting, or voted for an ineligible candidate, the result would be the same — no choice; and although it is true that no penalty is attached by law to a neglect of this obligation of voting, yet the obligation is not the less plain for that; and the committee believe it to be a duty too important to be neglected and too sacred to be trifled with by voting for fictitious persons or ineligible candidates. * * * The voter who puts into the ballot-box a blank piece of paper as clearly indi- cates his opposition to all the candidates as he who puts in a vote for an ineligible can- didate; and there seems to be no reason why the opinion of the one should not be entitled to consideration as well as that of tihe other." — (Report agreed to April 10, 1849, See Gushing, Reports Contested Election Cases, Mass., page 576.) 356 SENATE ELECTION CASES. In Indiana the same doctrine has been established by two decisions of the supreme court in the cases Gulicls ds. New (I41nd., 927) and Carson vs. McPhetridge'(15 Ind., 327). In the former case the court say: "It being conceded that the votes cast for Wallace were powerless and fruitless in effecting the main end arrived at — that is, in electing him. — we are still asked to decide that they were so far effective as to prevent the election of any other person; that they were, so far as affirmative results were involved, thrown away, but that negatively they were operative. We are reminded that in our form of government the majority should rule, and that if the course indicated is not followed a majority of the voters may be disfranchised, their voice disregarded, and their rights trampled under foot and the choice of a minority listened to. True, by the constitution and laws of this State the voice of a majority controls our elections, but that voice must be constitutionally and legally expressed. " Even a majority should not nullify a provision of the constitution, or be permitted at will to disregard the law. In this are the strength and beauty of our institutions. Sup- pose a majority should persist in voting for a man totally ineligible to take the office of sheriff; what would be the result ? As he could not hold the office, either the one capable of holding, receiving the next highest vote, would, as contended by the appellant, be entitled to the office, or there would be a vacancy, as insisted by the appellee. Suppose the proceedings should result in creating a vacancy; then it would remain, greatly to the detriment -of public and private interests, or it would, under the statute, have to be filled by the action and choice of perhaps two men, which might be, possibly, in direct conflict with the choice of that majoriiy in every respect. Then, while it is true that the votes of a majority should rule, the tenable ground appears to "be that if the majority should vote for one wholly incapable of taking the office, having notice of such inca- pacity, or should perversely reluse, or negligently fail to express their choice, those, although a minority, who should legitimately choose one eligible to the position should be heeded. Suppose that eight years ago, at the first election under our new constitu- tion, when nearly all the offices in the State were to be filled, a majority of the voters in the State, and in the several districts and counties, bad voted for persons wholly ineli- gible to fill the several offices, would those offices have thereby remained vacant? Could that majority, by persevering in that course, have continued the anarchy which might have resulted from such action ? Or, rather, is it not the true theory that those who act in accordance with the constitution and the law should control even a majority who may fail so to act? Whether the same reasoning should hold good where , the ineligibility should arise out of some cause other than a eonstitutional prohibition is a question we are not now called upon to decide. ' ' The majority of the court held that the voter must take notice of the disqualification of the candidate, and that votes cast for a candidate in fact disqualified must be thrown out, whether the voters knew of the disqualification or not.' Judge Perkins dissented upon this point, but affirmed the general doctrine, as follows: "1. Where, at an election, there are opposing candidates for an office, and the candi- date receiving the highest number of votes is ineligible, but, from a fact or cause which the voters did not and were not bound to know, the result is a failure, and gives no candidate a right to the office, and should be followed by another election. " Probable examples, under this propo.sition, of cases where the voters might not have knowledge, viz, infancy of candidate, non-residency, vyant of naturalization, not of male sex, not of requisite degree of white blood, not in existence. This last was the fact in^ the case cited from 38 Maine R., app. There a portion of the people by mistake voted' for a person not in being. The case of the State va. Swearinger (12 Ga. E., 23) was a case of non-residency. " 2. ■ Where the voters at the election do know, or are legally bound to know, so that, in law, they are held to know of the ineligibility of a candidate, the election does not result in a failure; but, in such case, the eligible candidate receiving the highest number of votes is legally elected and entitled to the office. ' ' Against this proposition we have not found a single authority. Those relied on as such by the court below were the cases in 38 Maine E. and 12 Ga., M,pra, and The Stato vs. Giles (1 Chand. Wis. R., 112.) "Of the case in Maine, we have said enough above. _" Of the cases in Georgia and Wisconsin, it may be remarked that neither of them in- volved the point now under consideration, and what is said upon it is mere dicta, and neither of the cases cites a single authority. "The point involved in the Georgia case was whether a certain corporate town in that State could elect to office in it a person not residing within the corporate limits, and it was held that it could. This closed the case. "The point involved in the Wisconsin- case was this; The constitution, article 6, sec- tion 4, provided that sheriffs should be ineligible for two years next succeeding the EANSOM VS. ABBOTT. 357 termination of their offices. A sheriff, in office at the time the constitution was adopted, was elected his own successor under the constitution ; and it was held that he was legally eleced; and that the disability imposed by the constitution related only to elections and terms hel ive franchise belongs to but few, than here, where the vote is by ballot, and the fran- chise well-nigh universal. In those cases the noticp was brought home to almost every voter, and the number of electors was never greater then three hundred, and gener- ally not more than two dozen. Besides, a man who votes for a person with knowledge that the person is incompetent to hold the office, and that his vote cannot, therefore, be effective, that it will be thrown away, may very properly be considered as intending to vote a blank, or throw away his vot^. 360 SENATE ELECTION CASES, "But the present relator sTiggests no such cause. He does not even aver that, If the votes giveii for Cluley were thrown out, he received a majority, though doubtless such ■was the truth. He has, therefore, exhihited no such interest as entitled him to be heard." Without considering or quoting from the very able dissenting opinion of Chief- Justice Thompson in this case, we thinlc it quite evident that the majority of the court have laid down principles upon which Abbott is entitled to his seat. Indeed, Abbott's case is precisely that iu which, according to the opinion of the court, those who voted for Vance "may very properly be considered as iutending to vote a blank, or throw away (their votes. ' ') The election of Senator in North Carolina is made by two bodies, num- ' bering, in the aggregate, lessthen two hundred, voting viva voca; and in this case those who voted for Vance voted viva voce lor a person Isnown by them to be disqualified. These are the only American decisions supposed to conflict with the principle herein maintained which have been brought to the notice of your committee. In neither of these cases was the precise point now under consideration involved, and in no one of these cases is the principle of common and parliamentary law that a viva voce vote given for a person known by the elector to be disqualified is thrown away asserted, or even suggested to be unsound. On the contrary, in the Pennsylvania case, State vs. Cluley, as we have shown, the correctness and justness of this principle are expressly declared. There are but two cases, so far as your committee are informed, in which the election of a Senator has been contested npon the ground of ineligibility at the time of the elec- tion— jthat of Gallatin from Pennsylvania and Shields from Illinois. And an examina- tion of these cases will show that in neither of them was the point now made either involved or considered. In Gallatin's case {I Cont. Elec. in Congress, 854) the proof showed that when Galla- tin was first mentioned as a candidate he expressed his opinion that his citizenship did not entitle him to be elected. Henry Kammerer testified that, at a meeting of some of the members of the legislature to agree upon a candidate for Senator, he heard Mr. Gal- latin say : "As lor Iny name, it is out of the question; I have not been a citizen long enough to entitle me to serve in that station." That at a second meeting it was stated, though not by Gallatin, that the doubt about his citizenship was then put to rights; and then it was almost unanimously agreed to put up Mr. Gallatin's name. Mr. Kammerer also stated the ground upon which Mr. Gallatin had at first supposed his citizenship did not entitle him to be a Senator. He says that the day after Gallatin's election he had a conversation with him, in which Gallatin said he had first declared himself ineligible " under a mistaken idea that it was necessary for him to have been nine years a citizen of the State of Pennsylvania; but that upon examining the Constitution he found that to have been nine years a citizen of the United States was sufficient, and that he had been above nine years a citizen of the United States, or words to that effect. ' ' From this it is evident that at the time of his election Mr. Gallatin, and those by whose votes he was elected, believed that he had been for more than nine years a citizen of the United States. And although the Senate decided that he had not been a citi- zen of the United States for nine years prior to his election, and unseated him for that reason, yet it was nowhere suggested, either by proof or on the argument, that the electors knew him to be disqualified at the time they cast their votes ibr him. Shields's case (Cont. Elec. in Congress, 1834 to 1865) is in all material respects like that of Gallatin. He had not, in fact, been nine years a citizen of the United States, and was unseated for that reason. But it was not pretended that the electors tnew of his disqualification. Therelbre neither of these cases has any bearing upon the question now under consid- eration. Your committee have also been referred to the caseof Yulee vs. Mallory, same volume, page 608. In that case, on the first day of the election — January 13, 1851 — the general assembly of the legislature of Florida met in convention of the two houses, and pro- ceeded to vote vitia voce lor Senator. Twenty- nine votes were given for Yulee, and 29 votes were given for " blank. '_,' Thereupon the presiding officer declared no choice had been made. They then proceeded to a second and third vote, with substantially the same result. On the 15th of January they met again, and, on a call of the roll, thirty- one members responded "S. R. Mallory," and 27 votes were given to Yulee and others, whereupon the presiding officer declared Mallory to be duly elected. From this state- ment it might seem that Yulee's ca^e raised the question now under consideration. But the brief, though very clear and able report of Mr. Bright, from the select committee in that case, shows the contrary. The two houses of the Florida legislature had, in 1845', passed a concurrent resolution, as follows: "Resdlved, That a rngjority of all the members-elect composing the two houses of EANSOM VS. ABBOTT. 361 eeneral assembly shall be necessary to determine all- elections deTolving npon that Though the validity of this resolution was attacked by Mr. Ynlee, the committee held that the resolution had been duly passed; that it had never been rescinded; that it was consistent with the Constitution of the United States empowering the legislature of a State to regulate the time, place, and manner of electing a Senator; and that it was conclusive against the right asserted by Yulee. And the resolution reported by the committee declaring that Mallory had been duly elected passed in the Senate without a dissenting vote. In the report the committee, after determining that under the resolution of the legis- lature above quoted Yulee was not entitled to a seat, say: "This .being the view which the committee take of the case, there is no necessity for pursuing the subject further, since Mr. Yulee did not obtain votes suflcient to dect him." The committee then notice the fact that the members of the legislature evidently voted upon the supposition that the resolution was valid, and say that— "Even Conceding the resolution to be invalid, yet the members in the election were misguided by what they had a right to consider as authority, and must have acted under a misconception of right which stood as they supposed unquestioned. If this be so, they stand substantially in the condition of an elector who votes for a person disqualified believing him to be qualified. The vote in such a case, though unavailing, is not rejected from the count. "The only remedy which we can see for an election carried on through misapprehen- sion from such well-founded causes is to set it wholly aside and open the way to a new choice; but in our view of the case there is no occasion to consider what ought to be done upon such a state of facts." ~ ^ The distinction between votes cast with knowledge or in ignorance of the disqualifica- tion of the candidate voted for is inferable from the report in Yulee's case. And the doctrine maintained by that report, that an election carried on under honest misappre- hension in regard to then existing tacts ought to be set aside and a new election ordered, is conceded. It was strongly contended before your committee that the case under consideration falJs iairly within this equitable principle; because it was said that all the State officers and judges of North Carolina had been elected while under disability imposed by ihe fourteenth amendment, and Congress had subsequent to their election rerhoved "their disabilities and enabled thera to hold their offices; and your committee were referred to the act of June 25, 1868 (15 Statutes at Large, 366), by which "all officers elected at the election commencing the 4th day of February, 1868, in the State of Alabama," and who had not publicly declined to accept the offices to which they were elected, were relieved of their disabilities. From these facts it was contended that the members oi the legislature who voted for Vance might well believe, and it was said that in fact they did believe, that Congress would relieve Vance of his disability and that he would be admitted to his seat in the Senate. This suggestion has some force, but a slight examination will show that it is rather plausible, than sound. In the first place the case bears no resemblance to that supposed in the report in Yulee's case; because here there was no misapprehension as to any fact then existing. If the ejectors had supposed that Vance was not disqualified, though in fact he was, or had they believed that an act had already passed Congress relieving him from his disability, though such was not the case, then the electors would have acted under a misapprehension and honestly entertained the belief that Vance was eligible. But such is not the case. Every elector who voted for Vance knew that he was disqual- ified by the fourteenth amendment, and that his disability had not been removed. Every elector therefore knew when he gave his vote for Vance that, as the case thrai stood, such vote was thrown away. As well might a man claim exemption from the penalty imposed by a statute upon the ground that although he knew he was violating its provisions he expected the legislature would repeal it. It was the duty of that legis- lature to elect a Senator who, in virtue of that election, and without the aid of any other government,' would be authorized to demand his seat as a Senator. To elect a disqual- ified candidate, and then refer it to Congress to remove his disqualifications or not, is to transfer the election from the legislature to Congress. In such case the legislature would in effect be nominating a Senator and submitting it to, Congress to determine whether or not he should be a Senator. Put the case in the strongest possible light for Vance, still it must be admitted that the electors who voted for him knew that ^s the case then stood their votes were being thrown away; that without the action of Congress, which might or might not be interposed, the election was in violation of the Constitu- tution; and up to the time when Abbott claimed his seat in this body, and up to the present hour, the votes g'.ven for Vance remain wholly inoperative, void, blanks in the 362 SENATE - ELECTION - CASES. )aiW, thrown away for every legal purpose. Mistakes which equity may relieve against are mistakes in regard to existing facts— not oveisanguine and unfounded hopes looking to the future for realization and accomplishment. In the second place, the legislation of Congress in regard to the organization of the reconstructed governments of the Southern States furnishes no precedent to bind the. Senate in determining the election of its own members. Those State governments could not be organized without relieving the disabilities of those who had been elected. Con- gress was therefore compelled to do so or abandon those States to anarchy or remit them to military rule. To quote the language of a great statesman on another subject: "A doubtful precedent should -not be followed beyond its necessity." No such necessity exists in regard to the Senate of the United States; and therefore the electors had no right to assume that Congress would do in this case where there was no necessity for it what it had been compelled to do in the other cases referred to. And in no case has a Senator elected under disabilities imposed by the fourteenth amendment been relieved of such disability and permitted to take his seat. Several decisions of the House of Eepresentatives have been referred to, which are supposed to be inconsistent with the principle here asserted. But it is believed that in none of those cases was it established that the electors knew of the disqualification of the candidate" voted for; and in the very able report of Mr. Dawes, from the Committee on Elections (Eep. of Committees, 11, 2d sess. 40th Cong.), which is much relied upon, it is expressly stated that this point was not involved because it did not appear that the electors had such notice. But there are many reasons for declining a critical examination of the decisions of the other House in regard to the election of its members. By the Constitution, each House is made the j udge of the elections, returns, and qualifications of its members. It would therefore be improper for the Senate — certainly indelicate for a committee of the Senate — to criticise the actions or decisions of the House; and it would be subversive of the Con- stitution because it would practically make the House of Eepresentatives not only the judge of the election, returns, and qualifications of its own members, but also of the members of this House, if the Senate were to follow as precedents the decisions of the House in conflict with its own opinions. Again, there is much force and reason in the distinction made by the court, in Com- monwealth TO. Cluley (56 Penn. St., 274), between a popular election, under our system of almost universal suffrage, for a member of the House of Eepresentatives, by ballot, and an election of a Senator by a otijo wee vote of the members. of a legislature. Anditmight well be that the House of Eepresentatives should establish one rule appropriate to the election of its members, and the Senate a different rule in regard to the election of its members. The difference between the two cases would justify different rules. In a popular election, by ballot, for a member of the House of Eepresentatives, where the voters a*e numerous and scattered over a considerable territory, it would be impossible to ascertain whether or not the electors, or enough of them to change the result, had knowledge of the disqualification of the candidate. Besides, voting by ballot includes the right of the elector to conceal the fact for which candidate he voted. This is his secret, which cannot be wrested from him even in a court of justice. And they who voted against the successful candidate, yet failed to defeat him at the polls, might at- tempt to accomplish the same end by pretending to have voted for him with knowledge of his incapacity. Even perjury in such case, should a voter voluntarily swear falsely in regard toJt, could never be detected and punished. Such a principle applied to such elections would be unsatisfactory, often incapable of application, and always a tempta- tion to frauds andperjuries,-which might be committed with impunity. And it may be conceded that, in determining who has been elected at such popular election by ballot, no candidate not receiving a majority of all votes cast, counting blanks and ballots for dis- qualified candidates, ought to be declared, elected ; and that the decisions of the House of Eepresentatives, as applied to the election of its own members, ought to proceed upon a different principle than the one here contended for. But the circumstances which may well induce the House of Eepresentatives to depart from the ancient rule and practice in determining the election of its members do not exist in relation to the election of Senators. Senators are elected by a small number of persons, the number fixed by law, who are compelled to vote viva voce. Their votes are matters of record, and the record discloses who voted for and who voted against the dis- qualified candidate. Whether these electors had notice or not of the ineligibility of a candidate is easily, and may be definitely and certainly, ascertained. There is no incon- venience, no opportunity for fraud, no temptation to perjury, in the application of the principle here contended for to such an election. Every reason that can be given for excluding the application of this priiiciple to popular elections by ballot sustains its application to the election of a Senator by the viva voce vote of the members of the legis- lature ; and it is worthy of rema,rk that the riUe of parliamentary and c6mmon law, which ilAjyoum. va. ABBOTT. 363 is established by an unbroken current of decisions in England, had reference to elections, not by ballot, but viva voce. That method of election gave rise to the rule, and no reason has been gi vcn , none suggests itself, for departing from it now in regard to such elections. And it should also be observed that in every case in the Ameriean courts of law where the judges have, obiter dictum, declared that the minority candidate was not elected, not only was the element of knowledge of the disqualification wanting, but the election was by ballot, and not mva ooce. Not a dictum of any American court, or American law- writer of established reputation, has been cited to your committee, audit is believed that none exist, which disapproves of the principle as applicable to elections viva voce. In the report of the majority it is said that this principle belongs to a government where, as in England, the right to vote has been granted or conceded as a boon or fran- chise by the monarch to his subject; and hence to vote for a candidate known to be dis- qualified is a crime. But that in this country voting is the inherent right of every citizen; and Koe on Elections, page 256, is cited as sustaining this assertion in relation to elections in England. The author referred to, so far from sustaining such a distinction, does not allude to it. And it is believed, for many reasons, that no such distinction can be maintained. ( 1 ) The great charter in England was not a concession in the sense of a grant of rights. It was an admission that certain rights belonged to Englishmen, and always had belonged to them. The rights there admitted to exist were the inherent rights of Englishmen. Blackstone says: "The great charter 'contained very few new grants, but, as Sir Edward Coke observes, was, for the most part, declaratory of the principal grounds of the fundamental laws of England.'" The great bill of rights delivered by the Lords and Commons to the Prince and Princess of Orange February 13, 1688, and afterward enacted in Parliament, after enumerating the privileges of the people, concludes in the following strain of ancient, manly eloquence: "And they do claim, demand, and insist upon all and singular the premises, as their undoubted rights and liberties." And the act of Parliament recognizes — "All and singular the rights and liberties asserted and claimed in the said declaration to be true, ancient, and indubitable rights of the people of this kingdom." {3) The right of voting in this country is not an inherent right of the citizen. If it were, women as well as men could vote; because women as well as men-are citizens, aqd always have been under our Constitution; and every inherent right of the citizen is possessed as fully, and may be exercised as freely, by the female as the male citizen. Our popular elections are participated in by those who have a constitutional right to vote. Their right to vote does not spring merely from citizenship; it is a right secured, limited, and regulated by the Constitution and laws. A citizen has no more inherent right to be a voter than to be a Senator. The citizen may vote if the Constitution and laws permit, not otherwise; so every citizen may be a Senator if duly elected and quali- fied, not otherwise. (3J But if such distinction were conceded to exist;" it would strengthen the conclusion here arrived at. To test this, let us concede that the Englishman, in voting, is exer- cising not an inherent right, but a franchise delegated to him by the Crown; therefore it is a crime for him to vote for a disqualified candidate, and for that reason his vote is considered as thrown away, and the next highest qualified candidate is to be considered as elected. And let us also concede that at a popular election in this country the voter exercises an inherent right of citizenship; and hence, if he votes for a candidate known to be disqualified, his vote is not thrown away. From these admissions what results? Simply this: That in our popular elections, by ballot, for a member of the House of Representatives, the principle here contended for does not apply. Very well. It does not apply upon this hypothesis, because the voter is exercising an inherent Mght, and not a delegated power, when he casts his ballot. Now, if this distinction be well taken, does not every one perceive that the principle here contended for must apply to an elec- tion of Senators by the members of a legislature, who, in that election, are exercising a delegated power, and not an inherent right? The members of the legislature, in elect- ing a Senator, are exercising a power that is delegated in a double sense. The power to eleet a Senator is delegated by this Government — that is, by the Constitution- of the United States — to the legislature of the State ; and the people elect members of that legis- lature, who are, among other things, to exercise this power of electing a Senator. It wiU not be pretended that a member of the legislature in voting for a^Senator is exer- cising an inherent right of a citizen, and all must admit that he is exercising a delegated power; so that the very argument which exempts the election of members of the House of Representatives from the operation of the principle under consideration subjects the election of Senators to its full operation. It has also been urged before your committee that bills passed by Congress to relieve 364 SENATE ELECTION CASES. disabilities of members elected to the House of Eepresentatives rest upon pririciplea inconsistent with the conclusions of this report. To this two answers may be made: 1. The proceedings of Congress in relation to cases of election while reconstruption of the late rebel States was in progress can hardly be relied upon as settling principles by which either House of Congress ought to be bound in times of peace. The circumstances under which such legislation was had were exceptional, and the legislation itself ought not to stand as a precedent. 2. The bills which have passed were bills originating in the House ■ of Kepresentatives concerning members elected to that House, and although the Senate has concurred in the enactment of such laws it ought not to be regarded as settling principles by which the Senate must be bound in determining the election of its own members. Whenever the House of Eepresentatives manifests its desire to seat a member, although , it may require the enactment of a law by both Houses to accomplish the purpose, still the Senate in concurring in such enactment may be regarded as extending a courtesy to the House of Eepresentatives rather than settling principles which will bind, the Sen- ate in relation to the election of its own members. To recapitulate, in regard to the precise legal question involved in this case, viz, whether in an election viva voce the votes cast for a candidate known by the electors when they gave their votes to be disqualified are to be considered as thrown away and the qualified candidate next on the poll is to be declared elected, we have in favor of such a principle: 1. The uniform and unbroken current of decisions in the British Parliament from the earliest to the present time. ~ 2. The unanimous voice of the English courts of law. 3. The express and well-considered decision of the supreme court of the State of Indi- ana in the case of Gulick vs. New (14 Ind. Eep. , 927), and the case of Carson vs. McPhet- ridge (15 Ind. Eep., 327), applying the rule even to a popular election. 4. The authority of Cushing's Lex Parliameniaria, the best American work on the sub- ject; Wilson's Digestof Parliamentary Law; Angelland Ames on Corporations, a work of standard authority; the precedent of the legislature of Massachusetts even in regard to a popular election of its members (vide Cushing's Eeports 6f Contested Election Cases in Massachusetts, page 499; and another case, same report; 576). And opposed to this principle in regard to an election viva voce we have absolutely nothing. Not a writer, English or American, not a decision of any court or dictum of any judge in either country has been cited condemoing or denying this principle in regard to such an election; and, on the contrary, the court, in Com. vs. Cluley (56 Penn. St., 270), which is relied on as being opposed, expressly recognize and indorse this principle when applied to elections viva voce by a limited number of electors. The cases which have been cited from the American reports and are relied upon as being opposed to this principle all related to popular elections by ballot, and not to elec- tions viva voce. Yet even in those cases the element of knowledge that the candidate was disqualified did not exist, and therefore all that is said about it in those cases is obiter dicta. A declaration .from the bench is obiter rfiefem, and not binding as authority when it was unnecessary to a decision of the case in which it was made. To illustrate, the Supreme Court of the United States in the Dred Scott case (19 Howard, 393), iirst determined that the circuit court of the United States had no juris- diction in the case. That ended the matter. The decision of the court below had t6 be reversed for that reason. It was therefore obiter dictum lor the court to proceed to decide questions which, decided either way, would not affect the judgment to be pronounced. Had the court in that case held that the Missouri compromise, so called, was constitu- tional, yet the decision, that is, the judgment, would have been the same. The true rule upon this subject is given by Vaughau, C. J. (Vaughan, 382), as fol- lows: "An opinion given in court, if not necessary to the judgment given of record, butthat it might have been as well given if no such or a contrary opinion had been broached, is nojudicial opinion, nor more than a, gratis dictum. But an opinion, though erroneous, concluding to the jadgment, is a judicial opinion," &c. 'To the same effect see Heath, J., in Hntchinson vs. Birch, 4 Taunton, 625; Pittstown vs. Plattsburg, 18 Johnson, 418. Therefore all that was said by the j udges in the American cases cited , which cases did not involve the element of knowledge of the incapacity of the caindidate, is obiter dicta. But were it otherwise, and had those decisions been made in cases which showed that the disqualification of the candidate was known to the elector, still the fact that they relate only to popular elections by ballot would render them wholly inapplicable to the case now before tHe Senate. Therefore it is submitted that upon reason and authority the votes east for Mr. Vance, with full knowledge on the part of the members of both houses of the legislature that RANSOM VS. ABBOTT. 365 he was disqualified by the Constitution to serve in this body, ought to be considered as thrown away; and that, inasmuch as a majority of all the members elected to each house were "actually present," the election was legal, and that the qualified candidate receiving the highest number of votes, and a majority of all votes cast tor qualified can- didates, was duly elected. It is conceded that majorities have a constitutional right to govern in this country; but it is not conceded that even the majority of the legislature of a State may morally or constitutionally defeat government by refusing to elect Sena- tors to serve in the Senate of the United States. In this case the majority had a right to elect a qualified person to the Senate; but, having waived their right by voting for a person known to be disqualified, as much as though they had refused to vote at all, or had voted for a man known to be dead, the minority who complied with the Constitu- tion by voting for a qualified candidate may well be held to have expressed the will of ' the legislature. If the majority, being called upon, will not vote, they cannot complain that the election was decided by those who did vote, though a minority of the elegtive body. And voting lor a person known to be disqualified is not voting. Such votes are void — no votes; and the highest number of votes cast, a quorum being present, must effect an election. Therefore, in view of the premises, the minority of your committee recommend the adoption of the following resolution: Resolved, That Joseph C. Abbott has been duly elected Senator from the State of North Carolina foir the term of six years commencing on the 4th day of March, 1871, and that he is entitled to a seat in the Senate as such Senator. MATT. H. CAEPENTEE, B. F. EICE, Minority of Committee. Thuesday, April 11, 1872. On motion by Mr. Logan ^ the Senate proceeded to consider the following resolution, reported from the Committee on Privileges and Elections: "Resolved, That Joseph C. Abbott, not having received a majority of the votes cast by the North Carolina legislature on the second Tuesday in November, 1870, for the office of Senator of the Unite^ States, is not entitled to a seat in said United States Senate as such Senator. " On motion by Mr. Carpenter to amend the resolution by striking out all after the word "resolyed," and inserting in lieu thereof the following: "That Joseph C. Abbott bas>been duly elected Senator from the State of North Car- olina for the term of six years, commencing on the 4th day of March, 1871, and that he is entitled to a seat in the Senate as such Senator," After debate, ■ > . , On motion by Mr. Edmunds (at 5 o'clock and 15 minutes) the Senate adjourned. [The debate, including a speech by Mr. Logan, is found on pages 219-229 of the Ap- pendix to the Congressional Globe referred to in the head-note.] Feiday, April 12, 1872. The Senate resumed, &c. [The debate is found on pages 2387-2390 of the Congressional Globe referred to in the head-note. Mr. Carpenter's speech is found on pages 245-257 of the Appendix referred to in the head-note. 1 ., .,rio-„ Monday, J.jjni 15, 1872. The Senate resumed, &c. ' . [The debate is found on pages 2431-2434 of the Congressional Globe referred to in the head-note. Mr. Thurman's speech is found on pages 234r-245 of the Appendix referred to in the head-note.] . ., „„ .„„„ Monday, Apnl 22, 1872. The Senate resumed, &c. ., ^n ,/.-,.. ^, • •, [The debate is found on page 2639 of the Congressional Globe referred to in the head- note. Mr. Pool's speech is found on pages 272-279 of the Appendix referred to in the head-note.] „ . ., „„ ,„„« Tuesday, Apnl 23, 1872. The Vice-President announced that the morning hour had expired, and called up the unfinished business of the Senate at its last adjournment, viz, the resolution reported from the Committee on Privileges and Elections declaring Joseph C. Abbott not entitled to a seat in the Senate as a Senator from the State of North Carolina; and the Senate resumed the consideration of the said resolution. ******* On the question to agree to the amendment proposed by Mr. Carpenter to amend the resolution, vi^: Strike out all after the word "resolved," and in lieu thereof insert: 366 _ SENATE ELECTION CASES. ' ' That Joseph C. Abbott has been daly elected Senator from the State of North Car- olina for the term of six years commencing on the 4th day of March, 1871, and that he .is entitled to a seat in the Senate as such Senator," After debate, It was determined in the negative — yeas 10, nays 42. On motion by Mr. Carpenter, the yeas and nays being desired by one-fifth of the Sen- ators present. Those who voted in the affirmative are Messrs. Ames, Chandler, Cragin, Gilbert, Howe, Nye, Osborn, Patterson, Pool, and Sawyer. Those who voted in the negative are Messrs. Alcorn, Bayard, Blair, Buckingham, Cald- well, Cameron, Casserly, Clayton, Cooper, Davis of West Virginia, Edmunds, Fenton, Ferry of Connecticut, Ferry of Michigan, Frelinghuysen, Goldthwaite, Hamilton of Maryland, Hamlin, Hill, Hitchcock, Johnston, Eelly, Logan, Morrill of Maine, Morrill of Vermont, Morton, Pratt, Eamsey, Robertson, Schurz, Scott, Sprague, Stevenson, Stockton, Sumner, Thurman, Tipton, Trumbull, Vickers, West, Windom, and Wright. So the motion was not agreed to; and On the question to agree to the resolution reported by the Committee on Privileges ■ and Elections, it was determined in the affirmative. So it was Resolved, That Joseph C. Abbott, not having receiveda majority of the votes cast by the North Carolina legislature on the second Tuesday in November, 1870, for the office of Senator of^the United States, is not entitled to a seat in said United States Senate as such Senator. [The debate is found on page 2676 of the Congressional Globe referred to in the head- note. Mr. Carpenter's speech is found on pages 328-334 of the Appendix referred to in the head-note.] COMPENSATION OS ME. ABBOTT. Wednesday, April 24, 1872. Mr. Morton, ftorn the Committee on Privileges and. Elections, reported the following resolution; which was read the first and second times, by unanimous consent: "Hesolved, That Joseph C. Abbott, late contestant for a seat in this body from the State of North Carolina, be allowed his salary from 4th of March, 1871, up to the 23d of April, 1872, and one mileage each way." The Senate proceeded to consider the said resolution as in Committee of the Whole; and no amendment being made, it was reported to the Senate. Ordered, That it be engrossed and read a third time. The said resolution was read the third time, by unanimous consent. Resolved, That it pass. .CEEDENTIALS OE ME. EANSOM. Monday, February 5, 1872. The Vice-President laid before the Senate the credentials of Matt W. Eansom, elected a Senator by the legislature of the State of North Carolina for the unexpired portion of the term commencing March 4, 1871; which were read. Ordered, That they be referred to the Committee on Privileges and Elections. Wednesday, April 24, 1872. Mr. Morton, from the Committee on Privileges and Elections, to wiom were referred the credentials of Matt W. Eansom, elected a Senator by the legislature of North Caio- lina for the term of six years commencing March 4, 1871, reported that upon examina- tion the committee had found that the credentials were in due form, and recommended that Mr. Eansom be admitted to a seat in the Senate; Whereupon Mr. Eansom appeared, and the oaths prescribed by law having been administered to him by the Vice-President, he took his seat in the Senate. ^ COMPENSATION OF ME. EANSOM. Feiday, Apnl 26, 1872. Mr. Bayard submitted the following resolution; which was referred to the Committee on Privileges and Elections: "Resolved, That the pay of the Hon. Matt W. Eansom, as a Senator from the State of North Carolina,' shall commence on the 4th day of March, 1871." EANS0M.V8. ABBOTT. 367 Tuesday, Jwae 4, 1872. Mr. Thntman, from the Committee ou Privileges and Elections, to •whom -was referred the resolution submitted by Mr. Bayard April 26, 1872, relative to the pay of Matt "W. Ransom, a Senator from the State of North Carolina, submitted the following report: The Committee on Privileges and Elections, to whom vyas referred the following reso- lution offered by the Senator from Delaware, Mr. Bayard, to wit: "Mesolved, That the pay of Matt W. Bansom as a Senator from the State of North Carolina shall commence on the 4th day of March, A. D. 1871, "_ Report that the practice in each House of Congress seems to have been founded upon an interpretation of the actof July 12, 1862 (12 Stat, 624; Manual, 312), consistent witk the resolution. As this interpretation has been practiced upon since 1862, and may be considered as within the spirit of the act aforesaid, your committee report back the res- olution with a lecommendatioh that it be passed. O. P. MORTON. A. G. THURMAN. H. B. ANTHONY. JOSHUA HILL. M. H. CARPENTER. JOHN A. LOGAN. B. F. BICE. The Senate proceeded to consider the said resolution as in Comhiittee of the Whole; and no amendment being made, it was reported to the Senate. Ordered^ That it be engrossed and read a third time. The said resolution was read the third time. Resolved, That it pass. 368 SENATE ELECTION CASES. [Forty-second Congress — Second and third sessions.] S. C. POMEEOY ANB ALEXANDER CALDWELL, of Kanms, April 8, 1872, a report of a joint committee appointed by the Kansas legislature to investigate charges of bribery and corruption connected with the Senatorial elections of 1867 and 1871 was pre- sented and referred to the Committee on Privileges and Elections. Wr. Pomeroy had been elected in 1867, and Mr. Caldwell in 1871. May 11, the Senate resolved that the conimi'tee be authorized to investigate these elections. June 3, the committee reported in regard to Mr. Pomeroy's election that there was no evident^e that Mr. Pomeroy had used money to influence any vote in his favor, except hearsay, and that ^vas plainly contradicted by direct testimony ; that the charges of bribery and corruption against Mr. Pomeroy. connected with his election, totally failed to be sustained by competent proof, but seem to bave been urged for some purpose unknown to the committee beyond that of correcting existing evils. Two members of the committee did not concur in the last con- clusion. The committee reported the testimony taken, and asked to be discharged from the further consideration of Mr. Pomeroy's case. / February 17, 1873, the committee reported In regard to Mr. Caldwell's election that they could " not doubt that money was paid to some members of the legislature for their votes, and money promised to others which was not paid, and offered to others who did not accept it ; " that it was a subject of discussion in the committee whethej" the ofi'enses of Mr. Caldwell should be punished by expulsion, or go to the validity of his election, but that a majority were of opinion that they went to the validity of his election, and had the effect to make it void. The committee submitted the evidence taken and recommended the adoption of a resolution that Mr. Caldwell was not duly and legally elected. March 24, after long debate on the resolution, before a vote was taken, Mr. Caldwell resigned his seat. February 10, 1873, on motion of Mr. Pomeroy, the Senate resolved that a select committee investi- . gate charges of bribery and corrui^tion in the Senatorial election held in January, 1873, relating to the alleged purchase by Mr. Pomeroy of the vote of A. M. York, a State senator. (Mr. Pomeroy had been a candidate for re-election in January, 1873.) February 18, a memorial of B. F. Simpson was presented, praying that the committee be authorized to investigate certain other general charges of bribery against Mr. Pomeroy. The Senate resolved that the committee be directed to inquire into these general charges. March 3, the committee reported the evidence, and the con- clusions that " none of the charges preferred by Mr. Simpson were sustained " ; and that, in regard to the charges of Mr. York, he " had not sustained his charge by sufficient proof, contradicted as it was by the evidence of Mr. Page and Mr. Pomeroy." One member of the committee did not agree with the report. No further action on the subject was taken. The' history of the case here given consists of a transcript of the proceedings of the Senate relat-' ing to it from Senate Journals, 42d Cong., 2d and 3d sess., and the reports of the committees, refer- ences to which are given in foot-notes. Special celferences to the debates of each day are inserted below. [Second session of the Forty-second Congress. ] Tuesday, March 5, 1872. Mr. Pomeroy submitted the following resolution; which was considered by unani- mous consent, and agreed to: ^'Eesolvedj That all papers and communications relating to the election of Senators in the State of Kansas in the years 1867 and 1871 be referred to the Committee on Privi- leges and Elections, and that they be directed to report to the Senate, after examination, what action, if any, should be taken by the Senate in relation thereto." Mr. Pomeroy presented a printed paper, purporting to be the report of a committee of investigation of the legislature of Kansas on the Senatorial elections in that State in the years 1867 and 1871, and moved that the same be referred to the Committee on Privi- leges and Elections. The reference of the paper being objected to, Ordered, That the paper lie on the table. On motion by Mr. Hamlin that the Senate reconsider its vote agreeing to the resolu- tion of Mr. Pomeroy in reference to the election of Senators in the State of Kansas in 1867 and 1871, it was determined in the affirmative; and, On motion by Mr. Hamlin, Ordered, That the resolution lie on the table. • [The debate is found on pages 1410, 1411 of the Congressional Globe, 2d sess. 42d Cong., part 2.] Monday, April 8, 1872. The Vice-President laid before the Senate a report of a joint committee appointed by the legislature of Kansas to investigate charges of bribery and corruption connected with the Senatorial election in that State in 1867 and 1871; which was referred to the Com- mittee on Privileges and Elections. POMEROY AND CALDWELL. 369 Mr. Pomeroy presented a report of a joiut committee appointed bv the Kansas legisla- ture to investigate charges of bribery /ond corruption connected with ihe Senatorial elec- tions of 1867 and 1871 in that State; -which was rel'erred to the Committee on Privileges and Elections. Saturday, 3Iay 11, 1872. Mr. Morton, from the Committee on Privileges and Elections, reported the following resolution; which was considered by unanimous consent, and agreed to: "Resolved, That the Committee on Privileges and Elections be authorized to investi- gate the election of Senator C. S. Pomeroy by the legislature of Kansas iu 1867, and the election of Senator Alexander Caldwell in 1871; that the committee have power to send for persons and papers; that the chairman or acting chairman of said committee or any subcommittee thereof have power to administer oaths, and that the committee be authorized to sit in Washington or elsewhere during the session of Congress and in vaca- tion." [The debate is found on pages 3316, 3317 of the Congressional Globe, 2d sess. 42d Cong., part 4.] Monday, May 13, 1872. Mr. Morton presented a petition of citizens of Kansas, praying an investigation of the election of Hon. Alexander Caldwell as Senator from that State. Ordered, That it lie on the table. * * * * » * * Mr. Morton, from the Committee on Privileges and Elections, reported the following resolution; which was considered by unanimous consent, and agreed to: "Meaolved, That the Committee on Privileges and Elections be authorized to employ a stenographer in the investigation which it has been directed to make into the Kansas Senatorial elections." Mr.' Morton, from the Committee on Privileges and Elections, reported the following resolution; which was read the first and second times, by unanimous consent: "Resolved, That the sumxif |1 0,000 be appropriated li-om the contingent fund of the Senate, or so much thereof as may be necessary, to defray the expenses of the investiga- tion into the Kansas Senatorial elections, ordered by the Senate to be paid upon vouchers approved by the chairman of the Committee on Privileges and Elections." The Senate proceeded to consider the said resolution as in Committee of the Whole; and no amendment being made, it was reported to the Senate. Ordered, That it be engrossed and read a third time. The said resolution was read the third time, by unanimous consent. Resolved, That it pass. Monday, June 3, 1672. Mr. Logan, from the Committee on Privileges and Elections, who were instructed by a resolution of the Senate of May 11, 1872, to investigate the election of the Senators from Kansas, submitted a report (No. 224) thereon. bkpoet of committee on election of me. pomeeoy in 1867.* In the Senate of the United States. June 3, 1872. — Ordered to be printed. Mr. Logan, from the Committee on Privileges and Elections, submitted the following report: The Committee on Privileges and Elections, to whom was referred a certified copy of the report of the joint committee of investigation appointed by the Kansas legislature of 1872 to investigate all charges of bribery and corruption connected with the Senatorial elections of 1867 and 1871, met on the 20th of April, 1872, and directed the clerk of said committee to prepare an abstract of theevidence furnished by the said report of the legis-, lature of Kansas. On the 23d of April your committee met and adjourned over until the 24th, when, on account of sickness in the family of Senator Thurman, the case was post- poned until he should rettirn from a visit home. On May the 11th your committee met and adopted the following jesolution: "Resolved, That the chairman of the committee do ask the Senate for leave to send for persons and papers in reference to the elections of both 1867 and 1871, and that the com- mittee have leave to sit in the vacation, and to take testimony by either the whole com- mittee or a subcommittee, at Washington or elsewhere; that, in asking for authority as aforesaid, the chairman be requested to state that the committee express no opinion upon the subject." * 'taken from Senate Reimrts, 2d sess. 42d Cong., vol. 1, No. 224. The testimony accompanying the report Is here omitted. S B 24, 370 SENATE ELECTION CASES. On the same day the Senate, in response to the request .of the committee, adopted the following resolution: „ ,, ,„„„ In the Senate of the United States, May 11, 1872. Resolved, That the Committee on Privileges" and Elections be authorized to investi- gate the election of Senator S. C. Pomeroy, by the legislature of Kansas, in 1867, and the election of Senator Alexander Caldwell in 1871; that the committee have poTier to send for persons and papers; that the chairman, or acting chairman, of said committee, or any subcommittee thereof, have power to administer oaths; and that the committee he authorized to sit in Washington, or elsewhere, during the session of Congress and in vacation. Attest* GEO. C. GOEHAM, Seeretarn. ByW. J. McDonald, Chief Clerk. On the 13th of May your committee met, and, in accordance with the authority con- ferred upon them by the resolution of the Senate, directed all witnesses in reference to the charges against S. C. Pomeroy, Senator from the State of Kansas, to be summoned to appear forthwith and testify in reference to said charges, Sind also the clerk of the com- mittee was directed to make inquiry who is the present custodian of the books and papers of the late Perry Fuller, of Washington, D. C, and, if such information can be had, that the party having possession of his account-hooks, check- books, and bank-books, for the time between December 1, 1866, and February 1, 1867, be summoned to appear with them. On motion, the committee adjourned subject to the call of the chairman. On the 21st day of May your committee were called together for the purpose of pro- ceeding with the examination, a portion of the witnesses having arrived. Senator Caldwell, of Kansas, appeared and urged an early examination and disposition of the question in reference to his election in 1871. Your committee, however, consid- ering the time too short during the sitting of Congress to thoroughly investigate both Senatorial elections, concluded to proceed only with the investigation of the election of Mr. Pomeroy in 1867, leaving the case of Mr. Caldwell to be examined during the vaca- tion of Congress, or at such time as may be agreed upon by your committee. The examination of the witnesses in the case of Mr. Pomeroy was then proceeded with, and continued from day to day until the case was closed. Your committee respectfully submit all the testimony, and report as follows: 1. That it appears from the evidence that two United States Senators were elected by the Kansas legislature in 1867, Mr. S. C. Pomeroy for a full term of six years, and Mr. Eoss for an unexpired term of four years from the 4th day of March, 1867; that the can- didacy of Mr. Pomeroy was generally understood by the people of Kansas during the election of members of the legislature who were to elect Senators for the State of Kansas, and that the election of Mr. Pomeroy as one of those Senators was generally conceded; that all candidates against Mr. Pomeroy for the long term withdrew from the contest, save Mr. A. L. Lee. Mr. Pomeroy, in joint convention of the two houses of the legis- lature, received 84 votes; Mr. Lee received 25 votes; the disparity of votes being so great as to preclude of itself the idea that the election of Mr. Pomeroy, against the will of the constituents of those who voted for him, was procured by corrupt means. 2. There is no evidence that Mr. Pomeroy, or any one for him, used any money or other valuable thing to influence any vote in his favor, or in any manner to bring about his election, except hearsay, and this is plainly contradicted by the direct: testimony of the parties either to whom or by whom it is alleged such considerations were given. 3. The evidence that Mr. Pomeroy 's canvass lor Senator cost him considerabje money is clearly shown to be the expenses paid by him for himself and friends during theSenar torial canvass, for hotel accommodations, disconnected entirely with the vote of any member, either for or against him. 4. The evidence shows'that some of the friends of Mr. Pomeroy have been appointed to office under the Government of the United States, but fails to show that they were appointed in consideration of any vote or any influence used by them in procuring the election of Mr. Pomeroy; and your committee beg leave to say that they can find no fault with Mr. Pomeroy or any one else (when they recommend tor appointment to office) that they recommend their friends instead of their enemies. 5. It appears from the evidence that Mr. Pomeroy engaged, for a compensation to be made, the services of the Lawrence State Journal to advance the interests of the Eepub- lican candidates and of the Eepublican party in the State of Kansas in the year 1866; but it also appears that said Journal broke its engagement, and supported the Conservative or Democratic ticket. , POMEROV AND f'AT .DWELL. 371 Your committee, therefore, after maturely dSDsidsring the testimony adduced before them, are clearly of the opinion that the charges of bribery and corruption against S. C. Pomeroy, connected with his Senatorial election by the Kansas legislature in 1867, to- tally fail to be sustained by any competent proof, but seem to have been urged for some purpose, unknown to your committee, beyond that of correcting existing .evils. Your committee, therefore, beg to be discharged from the further consideration of the same. O. P. MORTON, B. F. RICE, JOHN A. LOGAN, H. B. ANTHONY, MATT. H. CARPENTER, Committee. We concur with the other mranbers of the committee in the finding that there is not evidence before us -sufficient to show that Mr. Pomeroy 's election was procured by the use of corrupt means; and having no definite, reliable information leading to the con- clusion that further investigation would develop such evidence, we concur in the rec- ommendation that ihe committee be discharged from the further consideration of the subject. Here we think that our duty ends. We do not think it proper to impugn the motives of those who urged this investigation. The subject was brought to the notice of the Senate by the general assembly of Kansas, and, as it seems to us, a proper re- spect for that body precludes an imputation of improper motives. We cannot, therefore, concur in the last paragraph of the report, and there are other passages that do not meet our approval. For these reasons we have preferred to state our views in our own language. A. G. THURMAN. JOSHUA HILL. [Third session of the Forty-second Congress.] Monday, February 17, 1873. Mr. Morton, from the Committee on Privileges and Elections, who were instructed by a resolution of the Senate to investigate the election of Alexander Caldwell, a Senator from the State of Kansas in 1871, submitted a report (No. 451) accompanied by the following resolution: ' ' Begolved, That Alexander Caldwell was not duly and legally elected to a seat in the Senate of the United States by the legislature of the State of Kansas. " EEPOET OF COMMITTEE ON ELECTION OP ME. CALDWELL IN 1871.* [The committee consisted of Messrs. Morton (chairman), Carpenter, Logan, Aleom, Hill, Anthony, and Trumbull.] In the Senate of the United States. Febeuaey 17, 1873. — Ordered to be printed. Mr. Morton, from the Committee on Privileges and Elections, submitted the following report: On the 11th day of May, 1872, the Senate adbpted the following resolution: "Besolved, That the Committee on Privileges and Elections be authorized to investi- gate the election of Senator S. C. Pomeroy by the legislature of Kansas in 1867, and the election of Senator Alexander Caldwell in 1871; that the committee have power to send for persons and papers; that the chairman or acting chairman of said committee or any subcommittee thereof have power to administer oaths; and that the committee be author- ized to sit in Washington or elsewhere during the session of Congress and in vacation." In obedience to this resolution the Committee on Privileges and Elections have had under consideration the election of Alexander Caldwell to the Senate of the United States in January, 1871, have taken testimony, and beg leave to submit the following report: It is testified by Mr. Len. T. Smith, a former busmess partner of Mr. Caldwell, his active friend at the time of his election and during this investigation, that he made an agreement with Thomas Carney,- of Leavenworth, by which, in consideration that Mr. Carney should not be a candidate for United States Senator before the legislature of Kansas, and should give his in'fluence and support for Mr, Caldwell, Mr. Caldwell should * Taken from Senate Kepoits, 3d gess. 42d Cong., No. 451. The evidence accompauyinit the report la here omitted. 372 SENATE ELECTION CASES. pay him the sum of $15,000, lor which amount notes were given and afterward paid, at the same time taking from Mr. Carney a written instrument jn which he pledged him- self in the most solemn manner not to be a candidate for the office of Senator in the approaching election. This instrument is in the words following: "I hereby agree that I will not under any condition of circumstances be a candidate for the United States Senate in the year 1871 without the written consent of A. Cald- well, and in case I do to forfeit my word of honor hereby pledged. I further agree and hind myself to forfeit the sum of $15,000, and authorize the publication of this agree- ment. "THOS. CARNEY. "TOPEKA, January 13, 1871." Mr. Smith's testimony is fully corroborated by that of Mr. Carney, who admits the execution of the paper, the making of the arrangement, the taking of the notes, and the subsequent receipt of the money. The notes for the money were signed by Mr. Smith, but paid by Mr. Caldwell; and one of them, for $5,000, was made contipgent upon Mr. Caldwell's election. The substance of the whole agreement, only a part of which was expressed in the writing, was that Mr. Carney should not be a candidate for the Senate against Mr. Caldwell, that he should use his influence for Mr. Caldwell, go to Topeka, meet the legislature, and do all he could to secure his election. The first question lobe considered is: Was this arrangement corrupt? Was it the use of corrupt means on the part of Mr. Caldwell to procure his election? The oomniit- tee are of opinion that it was corrupt; was against public policy; was demoralizing in its character; directly contributed to destroy the purity and freedom of election, and not to-be tolerated by the Senate of the United States as a means of procuring a seat in that body. To understand the full nature of the transaction we must consider the character and position of Mr. Caa-ney.- He had been a governor of Kansas; he had once been elected a Senator of the United States by the legislature of that State, but the election was premature, being at the wrong session ; he had been a candidate for the Senate at another time, and had come within 10 votes of being elected. He was well known throughout the State, had a large body of active friends, many of whom were warmly devoted to his political fortunes. His being a candidate would greatly endanger the success of Mr. Caldwell, if not certain to result in his defeat. He .was from the same city with Mr. Caldwell, and his candidacy would be the more dangerous on that account. When Mr." Caldwell agreed to give him $15,000 under this arrangement it was an attempt to purchase the votes of the friends of Mr. Carney. He doubtless expected that Mr. Car- ney, through his influence over his friends, could bring them over to his support. They would naturally become friends to the man with whom Mr. Carney was friendly. It was, at least, a tacit part of this arrangement that Mr. Carney should conceal the mercenary part of the transaction, and place his withdrawal from the canvass and his support of Mr. Caldwell upon personal ^nd political considerations that were honorable to himself and would be attractive to his friends; and this he did. Mr. Carney went to Topeka before the Senatorial election and remained there until it was over, working industri- ously for Mr. Caldwell, and exerting all his personal and political influence to secure his election. Looking at the transaction in its real character it was a sale upon the part or Mr. Carney of the votes of his personal and political friends in The legislature, to be delivered by him to Mr. Caldwell as far as possible. If it were legitimate for Mr. Cald- well to buy off Mr. Carney as a candidate, it was equally legitimate to buy off all the other candidates and have the field to himself, by which he would exert a quasi-coer- cion upon the members of the legislature to vote for him, having no other . candidate to vote for. It was an attempt to buy the votes of members of the legislature, not by bribing them directly, but through the manipulations of another. The purchase-money was not to go to them hut to Mr. Carney, who was to sell and deliver them without their knowledge. That Mr.. Caldwell did procure the votes of members of the legis- lature, friends of Mr. Carney, ignorant of the fact that Mr. Carney was making mer- chandise of his political character and influence, and of their friendship for him, for which he Tfras to receive a large sum of money, the evidence leaves no reasonable doubt. Buying off opposing candidates, and in that way securing the votes of all or the most of their friends, is in efiect buying the office. It recognizes candidacy for office as a merchantable commodity, a thing having a money value, and is as destructive to the purity and freedom of elections as the direct bribery of members of the legislature. A candidate for the Senate without strength or merit may by purchasing the influ- ence and support of all or a part of his competitors and withdrawing them from the canvass succeed in an election, thus not only committing a fraud upon the friends of POMEROY AND CALDWELL. 373 the candidates who were purchased off, but a greater fraud upon the people of the State, who may be thus saddled with a representative in the Senate of the United States about whom they know little, for whom they care nothing, and who possesses little ability to represent their interests. Mr. Smith, the friend of Mr. Caldwell, testifies that he paid Mr. Carney the farther sum of 17,000 while at Topeka and just before the Senatorial election to meet Mr. Car- ney's alleged expenses while there, and through fear that Mr. Carney would after all withdraw from the arrangement and become a candidate. Upon the check for this sum the money was drawn irom the bank at Topeka in the evening by one T. J. Anderson, who testified that he gave it to Mr. Carney, and that he was ignorant of the consideration for which it was paid. Other testimony impeaches that of Mr. Anderson and raises a strong presumption that he was engaged in the pur- chase of votes ior Mr. Caldwell, and for which this $7,000 was used, and that for his services he afterward received the sum of |5,000 from Mr. Caldwell. Mr. Carney swears positively that he did not receive this $7, 000 or any part of it, but he indorsed the check at the request of Mr. Smith to enable him, to procure the money irom the bank; that the money was to be used in procuring votes for Mr. Caldwell, and that a package con- taining this money, as he believes, was placed by Mr. Anderson on a table in Mr. Car- ney's room, where it could be and was conveniently carried off by the parties for whom it was intended. Taking all the testimony together, the probability is that Mr. Carney did not get the 17,000, as no good reason was presented by Mr. Smith why when Mr. Caldwell was holding Governor Carney's written promise not to be a candidate and Mr. Carney hold- ing notes to be paid by Mr. Caldwell for $15,000 a new arrangement should be made % which Mr. Smith shonld pay Mr. Carney $7,000 more, making $22,000 in all. We now come to the consideration of the transaction with Mr. Sidney Clarke. He had been a member of Congress, had been a candidate for the United States Senate dur- ing the preceding canvass before the people, and many members of the legislature were elected upon personal pledges to vote for him for Senator. When the first vote was taken in the separate houses Mr. Clarke received 27 votes, the largest number given for any candidate but one; but the votes satisfied him and his friends that he could not be elected. An arrangement was concluded between Mr. Caldwell and a Mr. Stevens, a friend of Mr. Clarke, at a late hour in the night before the joint convention of the two< houses, by which Mr. Caldwell was to pay Mr. Clarke's expenses in the canvass, esti- mated at from $12,000 to $15,000, and Mr. Clarke was to withdraw in favor of Mr. Caldwell. At a caucus, of the friends of Mr. Clarke, held at 9 o'clock on the morning of the joint convention when Mr. Caldwell was elected, Mr. Clarke made a speech and urged them to vote for Mr. Caldwell, and in joint convention his name was withdrawn and all his friends but one voted for Mr. Caldwell. Subsequently in this city Mr. Clarke had several conferences with Mr. Caldwell, in which the latter promised to comply with his engagement with Mr. Stevens and pay Mr. Clarke's expenses, estimated at from $12,000 to $15,000, but never did. Mr. Clarke was unwilling to admit that he had made an agreement to transfer his friends to Mr. Caldwell in consideration of the lattei^s promise to pay this mopey, but taking all the testimony together the committee have no doubt that the transaction between him and Mr. Clarke was as has been stated. Mr. Caldwell'^ subsequent refusal to pay the money to Mr. Clarke does not relieve the character of the transaction, and very probably resulted in the exposure of Mr. Caldwell and the institution of this examination. There was nothing in the evidence to show that Mr. Clarke's expenses in the Sen- atorial canvass or in the preceding canvass before the people amounted to half the sum which Mr. Caldwell was to pay him. Mr. Carney and Mr. Clarke each testifies that Mr. Caldwell told them after the elec- _ tion that his election had cost him $60,000. Mr. Anthony, the mayor of the city. of Leavenworth, testified that Mr. Caldwell admitted to him that the election had cost him over $60,000. -Mr. Burke, editor of the Leavenworth Herald, and a supporter of Mr. Caldwell in his canvass, testifies that after the election Mr. Caldwell told him that the money he had paid Mr. Carney was not more than 10 per cent, of the whole amount which the election had cost him, and on another occasion that the election had cost him more than twice his entire salary. The committee have had much difficulty in tracing the money transactions; but the evidence shows th'at various sums, amounting to over $50,000, were drawn under cir- cumstances that make it probable they were used to procure Mr. Caldwell's election. The sum of $15,000 paid to Mr. Carney has already been stated. The second sum of $7,000, which Mr. Len. T. Smith swears was paid to Mr. Carney, and which Mr. Car- ney denies receiving, and testifies to circumstances showing it was used for the bribery of members of the legislature, has also been referred to. It is further shown that three or four days before the election took place Mr. Caldwell's agent went into the banking 374 SENATE ELECTION CASEB. house of Scott & Co., at Leavenworth, and drew the sum of $10,000 upon Mr. Caldwell's check for the avowed purpose of taking the money to Topeka by the train that morning, which was given as the reason for presenting the check before hank hours. Mr. Jacob Smith, banker at Topeka, testified that at 9 o'clock in the evening before the election took place. Dr. .Morris, of Leavenworth, a very active friend of Mr. Caldwell, drew 15,000 from his bank, and that Judge Crozier, of Leavenworth, an influential supporter of Mr. Caldwell, and then at Topeka laboring for his election, drew $1,200 from the bank after banking hours at the reqnest of Mr. Smith,, which was handed over to Mr. Smith. The testimony left no doubt upon the ininds of the committee that the bankers who honored these different checks at Topeka after banking hours understood that the money was to be used for political purposes. The evidence further shows that Mr. T- J. Anderson subsequently received from Mr. Caldwell the sum of $5,000 for his services in the election. A draft for $10,000, drawn by the solicitor of the Kansas Pacific Eail- road Company upon the treasurer of that company, was presented at the Kansas Valley Bank of Topeka by Mr. T. J. Anderson on the 23d of January, the day before the election, and the money drawn upon it under circumstances which taken in connection with other testimony make it probable that the money was used for Mr. Caldwell's election. The committee have no reason to believe that they have traced all the money that was used, and in the foregoing statement have taken no account of several small sums shown to have been paid by Mr. Caldwell for the expenses of his friends while at Topeka. ' . Mr. WUliam Spriggs, Si former treasurer of Kansas, testified in regard to a self-consti- tuted committee of six of Mr. Caldwell's leading friends who met from time to time at Topeka during the day and evening for five or six days before the election to confer and report progress in electioneering for Mr. Caldwell; that during the meetings of this committee it was reported by Mr. Smith what members of the legislature had been secured to vote for Mr. Caldwell, how much was offered to others, and how much was asked by Others. We quote from his testimony: ' ' We usually met at 10 o'clock in the morning, We had a roll of the senate and of the house and kept them, and we would compare notes, and then such a member of the committee would be sent that day or at such a time to see such members of the house and such another one to see "somebody else, whoever we thought would be the best man for that particular place, and then we would meet again at such another hour and report what we had done and what success we had had-, and in some quite a number of times — I do not know how many. In making the report and comparing notes there was one member of the committee would report; in calling over the names he would eome to such and such a man and he would spy, 'We had better not count that man yet; thait is under negotiation and he is a little too high; I think I can bring him down some. ' " This vritness testified to several interviews with Mr. Caldwell, and we quote from his testimony: " I will just tell you what Mr. Caldwell said to me about it. He asked me if I knew any members of the legislature that could be influenced by the use of money lor their vbtes, and 1 told him that I knew two members I believed that had the reputation of having been influenced in their votes on former occasions. " And further on: "He said if I found any members that wanted a little money for votes to send them to him and to Len. Smith. "Mr. Caldwell said there was another class of high-toned gentlemen there in the legislature that would not sell their votes, but they put it in this way: that they had been to a pretty heavy expense in carrying their election and they would want their expenses paid, and if I met with any of that class to send them to him or to Len." The testimony of Mr. Spriggs is very full and shows that the canvass of Mr. Caldwell was, thoroughly corrupt and that money was the chief argument relied upon. Among many other things he stated that T. J. Anderson told him that he had paid Mr. Crocker, a member of the house, $1,000 for his vote; that Mr. Crocker afterward backed out and handed the money over. to a Mr. Carson to be returned to Mr. Anderson; that Carson got on the cars, went home, and kept the money. Carson was afterward called by the committee and corroborated the statement, admitting that he had received the $1,000 back from Mr. Crocker to be returned to Mr. Anderson, but that he had kept the money -himself for his services to Mr. Caldwell. Mr. Carney testifies that in an interview with Mr. Caldwell after the election in which he was urging him to procure an appointment for one of Mr. Carney's friends who had voted for him, Mr. Caldwell took from his pocket a memorandum-book and appeared to run over a list of names, and coming to the man referred to, said, "That man has been paid;" and Mr. Carney understood from his manner that he had in this memorandum-book a list of members with the sums paid to each; that Mr. Caldwell told him upon another occasion that he had paid Mr. ' Bayers the sum of $2,500 for his vote and Mr. James F. Legate the sum of $1,000 for his POMEROY ANt) CALDWELL. 375 vote. Mr. Anthony also swears that in a conversation with Mr. Caldwell that gentle- man admitted to him that he had paid 12,500 for the vote of Mr. Bayers. There is much testimony showing that Len. T. Smith, Frank Drenning, James L. McDowell, George A. Smith, and T. J. Anderson, among the most active Mends of Mr. Caldwell during the canvass, admitted at dififerent times that they had offered money to memhers of the legislature to vote for Mr. Caldwell, in some cases specifying the members to whom it was offered and paid and in other cases that offers had been made that had not been accepted, and that negotiations were on hand with others which had not been com- pleted. These men have denied before the committee all conversations and admissions of this character and all payment of money to members or offers to pay them, and sev- eral members of the legislature who were implicated have expressly denied that they received the money or that offers were made them. Mr. Caldwell offered testimony showing that Mr. Carney had made threats to have him ousted from the Senate; that Mr. Anthony was hostile to him; that Mr. Burke had a lawsuit with him growing out of money furnished to Mr. Burke.about the time of the election; and to contradict several statements of Mr. Clarke. The most important contradictions of the testimony produced against Mr. Caldwell are made by members of the legislature who were themselves implicated or by the agents of Mr. Caldwell who were directly charged with taking a part in these corrupt practices; and there are some contradictions made by witnesses against whom there is no cause of suspicion. But taking the testimony altogether, the committee cannot doubt that money was paid to some members of the legislature for their votes, and money promised to others which was not paid, and offered to others who did not accept it." By the Constitution, each House of Congress iS made the judge of elections, returns, and qualifications of its members. If a person jelected to the Senate has not the constitutional qualifications, or if the election is invalid by reason of fraud or corruption, the jurisdiction to examine and determine is expressly vested in the Senate. Another clause of the Constitution authorizes the Senate to expel a member by a two- thirds vote. The causes for which a Senator may be expelled are not limited or defined, but rest in the sound discretion of the Senate. It has been a subject of discussion in the committee whether the offenses of which they believe Mr. Caldwell to have been guilty should be punished by expulsion or go to the validity of his election, and a majority are of the opinion that they go to the validity of his election and had the effect to make it void. Wherefore the committee recommend to the Senate the adoption of the following resolution: Resolved, That Alexander Caldwell was not duly and legally elected to a seat in the Senate of the United States by the legislature of the State of Kansas. In conclusion the committee remark that while Mr. Caldwell did things to procure his election which cannot be tolerated by the Senate, they believe he was as much sinned against as sinning. He was a novice in politics and evidently in, the hands of men who encouraged him in the belief that Senatorial elections in Kansas were carried by the n.se of money. [Special session of Senate, March, 1873.] Thuesday, March 6. 1873. Mr. Morton submitted the following resolution for consideration: ' ' Mesolved, That Alexander Caldwell was not duly and legally elected to a seat in the Senate of the United States by the legislature of the State of Kansas." Monday, MarcJi 10, 1873. The Senate proceeded to consider the resolution, &c. [The debate is found on pages 30-38 of the Congressional Record, vol. i, special session of the Senate, 43d Cong., 1873.] Tuesday, March 11, 1873. On motion by Mr. Morton, the Senate resumed, &c. [The debate is found on pages 41 47 of the Congressional Record above referred to.] Wednesday, March 12, 1873. The Senate resumed, &c. ^ :, . r :> ^ i [The debate is found on pages 48-62 of the Congressional Record above referred to.] THuisDAY, March 13, 1873. The Senate resumed, &c. , - j ^ n [The debate is found on pages 66-77 of the Congressional Record above referred to. J 376 SENATE ELECTION CASES. Friday, March 14, 1873. The Senate resumecl, &c. [The debate is found on pages 80-90 of the Congressional Eecord above referred to.] Monday, March 17, 1873. The Senate resumed, &c. [The debate is found on pages 90-102 of the Congressional Eecord above referred to.] Tuesday, March 18, 1873. The Senate resumed, &o. [The debate is found on pages 104-113 of the Congressional Eecord above referred to. J Wednesday, March 19, 1873. The Senate resumed, &c. [The debate is-found on pages 118-125 of the Congressional Eecord above referred to. ] Thuesday, March 20, 1873. The Senate resumed, &c. [The debate is found on pages 126-134 of the Congressional Eecord above referred to.] Feiday, March 21, 1873. The Senate resumed the consideration of the following resolution, submitted by Mr. Morton on the 6th instant, viz: "Resolved, That Alexander Caldwell was not duly and legally elected to a seat in the Senate of the United States by the legislature of the State of Kansas. ' ' On motion by Mr. Ferry, of Connecticut, to amend the resolution by striking out the following words, "was not duly and legally elected to a seat in the Senate of the United States by the legislature of the State of Kansas, ' ' and in lieu thereof inserting ' ' be, and he hereby is, expelled from the Senate of the United States," After debate. On motion by Mr. Sherman, the Senate proceeded to the consideration of executive business. [The debate is found on pages 137-154 of thte Congressional Eecord above referred to.] SatuedAY, March 22, 1873. The Senate resumed the consideration of the following resolution, submitted by Mr. Morton on the 6th instant: ' ' Eesolved, That Alexander Caldwell was not duly and legally elected to a seat in the Senate of 1he United States by the legislature of the State of Kansas." The question ieing on the amendment yesterday proposed by Mr. Ferry, of Connecti- cut, viz, strike out the following words, " was not duly and legally elected to a seat in the Senate of the United States by the legislature of the State of Kansas," and in lieu thereof insert "be, and he hereby is, expelled from the Senate of the United States," On motion by Mr. Ferry, of Michigan, to amend the amendment by striking out the, words " expelled from the Senate of the United States," and in lieu thereof inserting; "declared to have been elected a Senator of the United States by the legislature of the State of Kansas," After debate, ' On motion by Mr. Morton, the Senate proceeded to the consideration of executive business. [The debate is found on pages 154-164 of the Congressional Eecord above referred to.] Monday, March 24, 1873. The Vice-President laid before the Senate a communication from Alexander Caldwell informing the Senate that he had transmitted to the governor of Kansas his resignation as a Senator of the United States from that State; which was read. [The letter of resignation and a statement by Mr. Morton is found on pages 164, 165 of the Congressional Eecord above referred to.] INVESTIGATION OF THE CHAEGES OF BEIBEEY PEEFEEEED AGAINST ME. POMEEOY IN THE SENATOEIAL ELECTION OF 1873. [Third session of the Forty-second Congress.] MONDAY, Felrmry 10, 1873. Mr. Pomeroy rose to a question of privilege, and having addressed the Senate upon the subject of certain charges made in copnection with the recent Senatorial election in POMEROY A>JI) CALDWELL. 377 the State of Kansas, submitted the following resolution; which was considered by unanimous consent, and agreed to: Resolved, That the charges of bribery and corruption in the ]ate Senatorial election ia the State of Kansas, relating to the alleged purchase by the Hon. S. C. Pomeroy, United! States Senator from Kansas, of the vote of A. M. Yorlc, a member of the senate of that State, be, and the same are hereby, referred to a special committee to be appointed by this body, consisting of five members; and that the said committee be, and are hereby,, authorized and directed to investigate the same; and for that purpose to send for per- sons and papers, summon witnesses, employ a stenographer, and make such report to this Senate as in their judgment shall be justified by the law and the facts. ' ' Whereupon The Vice-President appointed as such committee Mr. Frelinghuysen, Mr. Buckingham, Mr. Alcorn, Mr. Thurman, and Mr. Vick^rs. [Mr. Pomeroy's remarks are found on pages 1214, 1215 of the Congrespional Globe, part 2, 3d sess. 42d Cong.] Thuesday, February J 3, 1873. Mr. Frelinghuysen, from the select committee to inquire into certain alIegatioj\s against Hon. S. Ci Pomeroy, reported the following resolution; which was read the first and second times by unanimous consent: "Besolved, That the sum of |!8,000, or so much thereof as may be necessary to pay the expenses of the select committee appointed on the 10th instant to inquire into certain charges of bribery and corruption in connection with the recent Senatorial election in Kansas, is herfeby directed to be paid out of the contingent fund of the Senate, under the order of the chairman of said select committee, the vouchers therefor to be approved by the Committee to Audit and Control the Contingent Expenses of the Senate." The Senate proceeded to consider the said resolution as in Committee of the Whole; and no amendment being made, it was reported to the Senate. Ordered, That it be engrossed and read a third time. The said resolution was read the third time by unanimous consent. Besolved, That it pass. Monday, February 17, 1873. Mr. Frelinghuysen submitted the following resolution; which was considered by unan- imous consent, and agreed to: ' 'Ecdolced, Thai/ tiie select committee appointed to Inquire into charges of bribery and! corruption iii the recent Senatorial election in Kansas have leave to sit during the sesr sions of the Senate. Tuesday, February 18, 1873. The "Vice-President laid before the Senate the memorial of B. F. Simpson, representing; as attorney, A. M. York and others before the select committee of the Senate to inquire into certain allegations against the Hon. S. C. Pomeroy, praying that said committee be authorized to receive the statements of certain members of the legislature of the State of Kansas that they were oflFered money or other valuable considerations by the agents and friends of the said Pomeroy at the recent election of Senator in Kansas. On motion. by Mr. Sherman that the said memorial be referred to the select committee to inquire into certain allegations against Hon. S. C. Pomeroy, After debate, Mr. Sherman having withdrawn the motion submitted by him, Mr. Ferry, of Connecticut, submitted the following resolution; which was considered by unanimous consent, and agreed to: "Besolved, That the committee charged with the investigation of the charges against Hon. S. C. Pomeroy be directed to inquire into any allegations of bribely or corruption by saijd Hon. S. C. Pomeroy in the recent election for United States Senator by the legis- lature of Kansas. " [The debate is found on pages 1448-1454 of the Congressional Globe, part 2, 3d sess. 42d Cong.] Saturday, February 22, 1873. The Vice-President laid before the' Senate a resolution of the legislature of Kansas, declaring that it is due to the dignity and honor of that State that Hon. S. C. Pomeroy should resign his oflce of United States Senator; which was referred to the select com- mittee to inquire into certain allegations against Hon. S. C. Pomeroy. Monday, March 3, 1873. Mr. Frelinghuysen, from the select committee appointed to inquire into certain alle- jgations against S. C. Pomeroy, submitted a report (No. 523) thereon. Mr, yicjsers and Mr. Thuiman, members of the committee, each submitted his views 378 lENi.l'E ELECXIOV CASES. concerning the charges against Mr; Pomeroy ; which were ordered to be prmteA to accom- pany the report (No. 623). eepoet of committed on the chaegbs op beibeey peefeeeed against me. pomeeoy in the senaioeial election of 1b73.* - In the Senate of the United States. Maech 3, 1873. — Ordered to be printed. Mr. Frelingbuysen, from the select committee to inquire into certain allegations , against Hon. 8. C. Pomeroy, submitted the following report: The committee appmnted to investigate the charges of bribery in the recent Senatorial election of Kansas, preferred against Senator Pomeroy by A. M. York and by B. F. Simpson, respectluUy report: That without any avoidable delay they have performed the duty imposed upon them. The charges preferred by Mr. Simpson consist of a number of alleged specific acts of bribery or attempts to bribe. The charge of Mr. York is that of a single act of bribery. I. Attention is first invited to the charges of Mr. Simpson. Mr. O'DriscoU, a member of the legislature, testifies to (bur different attempts to bribe him. These charges are contested by the testimony of Asa Lowe, David Payne, J. S. Hoke, S. P. Brown, and other witnesses referred to hereafter. Frank Bacon, a member of the Kansas legislature, speaks of two attempts to bribe him, and his charges are contested by Albert H. Horton and other witnesses referred to hereafter. William H. Bond, a member of the Kansas legislature, speaks of three attempts to influence him improperly. These charges are contested by the testimony of John J. Murphy, Albert H. Horton, C. A, Eohrabacker, and two other witnesses referred to hereafter. C. A. Eohrabacker makes the allegation in his testimony that Senator Pomeroy told him to give Mr. Davis, a member of the legislature, two or three hundred dollars. That this charge is entitled to no weight sufficiently appears by the examioation of Mr. Eohra- backer's evidence. The committee are unanimously of the opinion tha,t even if the foregoing transactions were made out as cases of bribery, there is no sufficient evidence to connect Senator Pomeroy with any of them. Mt. William Simpson, a member of the legislature from the neutral lands of Kansas, testifies that he went to Senator Pomeroy 's rooms on the 28th of January, as the election was to occur on the 29th and 30th of January, to inquire about the bill iu Congress for the relief of the settlers on those lands, and that Senator Pomeroy told him that if he would vote for him he would pay the expenses of Mr. Laughlin, the agent of those settlers at Washington, and who was supported by the vol- untary contributions of those settlers; that the number of settlers is about 25,000, and that Mr. Laughlin's compensation is small. On this charge there is some difference of opinion in the committee; the majority of the committee holding that if the charge was uncontradicted and unexplained, while, it would unquestionably present the case of an improper appea,l to "motive," it is at least questionable whether it would be the crime of attempting to bribe — not because of the small distributive amount of Mr. Simpson's contribution, but because he was under no obligation to pay anything. If the sum Mr. Simpson was to pay was a tax, the case would be different. But Senator Pomeroy op- poses his evidence to that of Mr. Simpson, and testifies that Mr. Simpson told him how little money Mr. Laughlin, the agent, had, and that he had so written him, and that he had no means to continue at Washington, save by vdluntary contribution, and that he (Pomeroy) tcld SirapsOn he was a friend of the settjers and would in any event contribute to his support, and that when he reached Washington he did accordingly give Mr. Laughlin $50; and Mr. Pomeroy then adds in his testimony, "and hence it is certain that my contribution had no relation to any man's vote. " A majority of the committee are of opinion that under this state of facts, and under the evidence, this charge of bribery is not affirmatively sustained. The witnesses. Judge Albert H. Horton, George T. Anthony, John A. Martin, and Mr. Legate, the confidential friends and advisers of Mr. Pomeroy in the canvass, and in a position where they would naturally know, state that they have no knowledge of Mr. Pomeroy using, or author- izing to be used, any improper influences in the election. Aid Mr. Pomeroy most positively denies that he ever, directly or indirectly, paid or promised to pay any individual one dollar, or any other sum,, for his vote for him at the late Senatorial election. * Taken from Senate Reports, 42d Cong., 3d seas., No. 523, The evidence aooompanying the report is here omitted. POMEROY AND CALDWELL. o70 AJiutJorltyof the committee are of opinion that none of the charges.preferred as afore- said by Mr. B. P. Simpson against Mr. Pomeroy have been sustained. II. We now come to the consideration of the specific charge of bribery made by Mr. A. M. York. Mr. York's statement is that Mr. Pomeroy gave him, on Monday, the 28th of Janu- ary, $2,000, and on Tuesday, the 29th of January, $5,000, as a bribe to vote for him in the joint convention on Wednesday. Mr. Pomeroy's statement is that he did give him the money at the times and in the amounts stated, not as a bribe, but to carry to Mr. Page as a loan from Pomeroy to aid Page in the purchase of thirty bonds of the United States of the denomination of $1,000, Page having ,$25, 000 in currency. The question the committee is to determine is notwhich, if either, of these two state- ments, painfully irreconcilable, is in all its details true; but the question is whether, taking all the testimony together and weighing it, Mr, York has sustained his charge. There are circumstances that legitimately affect the credibility of Mr. York in this trans- action. John M. Holmes testifies to hearing Mr. York say alter the Senatorial electfon that "he had determined to defeat Mr. Pomeroy, cost what it might, and that his ex- posure of Mr. Pomeroy was the work of time." Mr. York testifies that he, W. A. jTohn- Bon, G. C. Horton, Major B. F. Simpson, spoken of as a candidate for the United States Senate, had a consultation on Monday evening, January 28, and it was agreed that if Pomeroy should offer York money he was to take it and expose him in the convention on Wednesday. It was, in the language of Mr. York, the conclusion of those gentlemen there, at that time, that there was no other way of defeating him, and that he would be elected; and it was further there agreed that the money should be appropriated to the school fund of Kansas, and they pledged themselves to secrecy. Chester Thomas says that Mr. B. F. Simpson, who acted as counsel for Mr. York in this investigation, and is named by him as above, said to him, "Well, we could not afford to have Pomeroy elected; we had to defeat him some way; we were beat, and we had to do something." I. L. Sharp gave like testimony. It appears that the plan was kept secret until Wednes- day at the joint convention, when an excited exposure was sprung upon that body and the money was exhibited by Mr. York, and he made the statement that members of the legislature had Mr. Pomeroy's money burning in their pockets, ofw^hich fact we not only have no proof, but it appears that Mr. York had no such knowledge; It appears that an effort wa-s made by members to adjourn and also to have a recess for an hour or two, that the truth of the allegations made might be ascertained, and that Mr. York resisted these efforts, for fear, as he says, that Mr. Pomeroy might be able to appoint his own successor. Thus, even if Mr. York's, and certainly if Mr. Pomeroy's, statementbe taken as true, Mr. York was the principal actor in an effort not only to betray and defeat Mr. Pomeroy, but to deprive the State of Kansas of its free and deliberate choice of a Senator. These circumstances do not prove that Mr. Pomeroy did- not bribe Mr. York, but they do impair the credibility of Mr. York as a witness, for when a line of deception has been entered upon no one can say when it is dropped and the golden thread of truth adopted. The truth which the committee seek is as to what occurred in the room on Monday and Tuesday when Pomeroy delivered the money to York. They were alone, and con- tradict each other. There is, however, evidence relating to Mr. York's purpose in going to Mr. Pomeroy's room. Mr. York says that Mr. Hairgrove told him that Mr. Pomeroy would be glad" to have a business interview with him, and that invitation assured him (York) that Mr. Pomeroy was about to offer him money, and was the reason of the pri- vate consultation, before alluded to, with William Johnson, B. F. Simpson, and J: C. Horton, when the plan of operations was adopted. WiUiam Johnson says Mr. York said at that consultation that Hairgrove had itivited him to Pomeroy's room oa a business matter, or to have a business interview, that night, and from that they all concluded that that meant a money proposition. J. C. Horton says York did not give the name of the person who had invited him to Mr. Pomeroy's room. B. F. Simpson, the other , person present at the consultation, acted as counsel for Mr. York before the committee, and was not sworn. Mr. Hairgrove says he did not give any invitation to Mr. York to call at Mr. Pomeroy's room; that he had a conversation with Mr. York and told him that if he wanted to see Mr. Pomeroy he would so tell Pomeroy, but that he never took any message from Mr. Pomeroyto Mr. York. ^^. ,, . , Mr J. Q. Page testifies that after his interview with Mr. Pomeroy on this Monday he saw Mr. York and told him that Mr. Pomeroy would probably give him a package of money for him (Page) and that he wanted him (York) to bring it to him. This York denies. . , Mr. York's testimony is, in effect, though not in words, that on Monday evening be- 380 SENATE ELECTIoi CASES. fore he had the interview with Pomeroy he not only supposed he was about to bribe him, but was so certain and so assured of it that a pledge of secrecy as to it was entered into with his associates as to" the coming event; that it was determined that the bribery should not be disclosed on Tuesday in the senate or house, but should first be made known in joint convention on 'VFednesday; that it was assumed the amount was to be so considerable that it would be a suitable contribution to the school fund, to which it was by agreement destined, and that to make proof thereafter clear that he had received the money from Mr. Pomeroy he was searched at 7 p. m. and found to iave but about $10 on his person ; after which search, it may be remarked, York went about the town aiid saw some two hundred persons before he saw Mr. Pomeroy at 12 p. m., and the only founda- tion for this assurance of the coming bribe, according to Mr. York, was the fact that Mr., Hairgrove had invited him to a "business interview" to be had with Mr. Pomeroy that evening; and this, as before stated, Mr. Hairgrove denies. The committee are at a loss to discover from whence Mr. York derived this assurance that he was to be bribed, and that it was to be that night, and to be in a large sum, from any fact consistent with his statement. If it be true, as Mr. Page testifies, that be had that afternoon told him that Mr. Pomeroy would probably give him a package of money to bring to him, one can more readily understand this confidence that he was to receive money. But that he had any such notice Mr. York denies. If Mr. York was acting on information Page gave him, there is no evidence that he communicated that information to his associates. Another improbability in Mr. York's statement is that Mr. Pomeroygave him $7,000 in cash, not for his unconditional support in the senate on Tuesday and in joint conven- tion on Wednesday if there should be a vote there, but that on Monday night he agreed to give him $8,000 for his vote under a stipulation that he might vote against him in the senate on Tuesday (when his vote might be as desirable as on Wednesday), and that he was at liberty even to reconsider his conclusion as to voting for him on Wednesday, and that on such an understanding he paid him oh Monday$2,000, and on Tuesday, after he had that day voted against him, $5,000 more. And Mr. Pomeroy did this while it appears in evidence, beyond question, that he was either honorably refraining from all corrupt influences to promote his election or that he was carefully on his guard against being entrapped in the use of money, and while it appears that Mr. York was attending the anti-Pomeroy caucus, acting as its secretary, and known by Mr. Pomeroy to have been opposed to him. Now we come to the consideration of the statement of Mr. Pomeroy that he gave Mr. York this $7,000 to take to Mr. Page to enable him to purchase bonds of the United States to aid in the establishment of a national bank. In considering this statement Mr. Pomeroy is entitled, to the extent that other men are, to the presumption of innocence — a presumption somewhat strengthened by the fact that his accusers have failed to sustain their other charges of bribery against him in the same election. Mr. Page was a man of means and a banker, living at Independence. Mr. McBartney, of the national bank at Junction City; Mr. Shaw, of the Paola National Bank, and Mr. Legate, the clerk of Mr. Pomeroy's committee, ajl heard Mr. Page conversing' with Mr. Pomeroy during the Senatorial canvass at Topeka about starting a national bank at Independence, part of the conversation relating to the amount of capital required, but not as to Mr. Pomeroy advancing any part of the capital. Mr. Maxson testifies to Mr. Pomeroy inquiring of him prior to 27th January as to Mr. Page's pecuniary responsibility; that he told Mr. Pomeroy that he was responsible and trustworthy. Mr. Page lived in the same town with Mr. York, and they were friends. It appears by Mr. York's testimony that he called on Mr. Pomeroy with Mr. Page some ten days before the occurrence to which our investigation is directed. Mr. Page testifies that he requested Mr. Pomeroy's influence to obtain a national bank at Independence; that Mr. Pomeroy told him it would require $50,000, but if he had $30,000 in. United States bonds he could pay the balance in installments. Page said that he could raise $25,000 in currency, and that Mr. Pomeroy said he would help him to the balance, its he had helped other young men, and that Mr. Pomeroy said he expected to have money before the election, and would let him have it. On Monday, Mr. Page says, he went to Mr. Pomeroy and told him he was going home, and it was arranged that Mr. Pomeroy was to send him the money by Mr. Bell or Mr. York. It is to be observed that Mr. Pomeroy then had in his possession the $7,000; and that fact should receive its weight as affecting Mr. Pomeroy's statement. And Mr. Page says that, on the same day, he told Mr. York that it was probable that Mr. Pomeroy would hand him (Mr. York) a package of money for hiin; and if so, he wished him to bring it to him. Mr. Page says that he on Monday told Mr. Hairgrove, who was also a promoter of Mr. POMEROY AND CALDWELL. 381 Ponieroy's election, that he was going home, but was persuaded by Mr. Hairgrove to stay; that he did not stay at the same hotel with Mr. Pomeroy, and did not see him again to speak with him while at Topeka, though he did see him from the door of Mr. Pomeroy's room, Mr. Pomeroy states, on his oath, that Monday evening, January 27, Mr. York called on him, having sent word that he was coming, and informed, Mr. Pomeroy of what was going on at the anti- Pomeroy caucus; spoke of the favor Mr. Pomeroy had granted his friend Page, and said that Page had requested him to get the money and forward it to him at Independence, and that he (York) would leave soon after the election for home. Mr. Pomeroy told him he was not prepared at that time to furnish it, although he said he had promised it to Page before he (Pomeroy) left the city. Mr. York said perhaps Mr. Pomeroy had no confidence in him. Mr. Pomeroy assured him of his confidence and said that he could famish $2,000 at any time, and thought he should be able to pay the $5,000 next day, and paid him $2,000 then. It is proper to notice, that on this Mon- day Mr. Pomeroy had the $7,000 with him. During the next day, Mr. Pomeroy says, he sent Mr. Knight and Mr. Lemuel Pomeroy to look for Mr. Page to inform him of the transaction, if he had not left the city, and to see if it was all right. They could not find him. Neither Lemuel Pomeroy nor Knight was examined on this point. That on the afternoon of that day (Tuesday) Mr. Pomeroy paid Mr. York the $5,000 in currency, in packages of $1,000, with the bank-mark on them. When the alleged exposure was made in the convention. Judge Horton, who was pres- ent, says that when a recess was refused, as soon as he could get out of the crowded house, he went to Mr. Pomeroy's room and told him what had happened; that Mr. Pomeroy was overwhelmed; that no one defended him, and said he had done nothing wrong; that while they were talking a messenger came in and said that the convention was voting for Sena- tor; that there being much excitement at the hotel, Mr. Pomeroy went to a private house, and as soon as there Mj-. Pomeroy told him substantially what Mr. Pomeroy has stated before this committee — that Mr. Pomeroy said that he supposed Mr. Page, now thinking he was going to lose the money, might go back on him and he would have trouble; but if Page would stand up to the agreement there was no question that before the country and his friends he would be fully vindicated. There are several questions that arise in this transaction which are not satisfactorily explained. Why did not Mr. Pomeroy deliver the entire $7,000 to Mr. York on Monday, instead of $3,000 on Monday and $5,000 on Tuesday? It is true Mr. Pomeroy says the $5,000 was locked up in his valise and the key with his clerk, but the clerk was near; and it is also true that Mr. Pomeroy says he sent out on Tuesday to find Mr. Page, if he was in town, to see that it was all right, and conld not find him ; and he says that when he hesitated in paying Mr. York anything on Mon- day evening he considered it a want of confidence. The same difficulty exists, too, if we adopt Mr. York's statement. On the theory ot his story, why did not Mr. Pomeroy pay the whole $7,000 on Monday? He says he only paid him then $2,000. Why did not Mr. Page, who was present at the convention when the alleged exposure was made, state that Mr. York was to bring him a package of money from Mr. Pomeroy? It is true it was not certain the money was to be sent; the sum was not definitely fixed; it was to be from eight to ten thousand dollars. Neither was it known to him whether it would be sent by Mr. Bell or Mr. York; and yet it would seem natural for him to have spoken. How did it happen that no one was present at either of the two interviews between Mr. York and Mr. Pomeroy ? Mr. Pomeroy speaks of that fact as merely accidental, he not being entirely certain whether any one was present or not. It is clear, however, that they were alone, and it is unfortunatefor the solution of this question that they were so. How did it happen that Mr. Page and Mr. Pomeroy, holding their delations, did not meet when both in Topeka from Monday to Wednesday? This may have been accidental, if such was the fact. Mr. Page says that he did go to Mr. Pomeroy's rooms, but that there was a great press of people there, so that he could not reach him. Why did not Mr. Pomeroy deliver the $7,000 to Mr. Page himself when he called on Monday ? He then had the money. Why did not Mr. Pomeroy give Mr. York the money he was to take to Mr. Page in a sealed package? Mr. Pomero.y may have desired, in view of the coming election, to conciliate Mr. York by showing him that he was assisting his friend Page, by showing him that he was aid- ing in establishing a bank in his town, and by reposing confidence in him; but even the sug!J;estion of this improper motive is not a satisfactory answer to these questions. There are also some discrepancies between the statements ng. And when we add that it is worse than the sheerest pretense that anything there attempted was in the least connected with his official conduct or character, we dismiss this part of the case. In the next place it is attempted to be shown that he improperly used his official position and influence as Senfitor to procure the removal of the witness (\V'hipple)from hisoffice of dislrictattor- ney,nnd General Catterson as marshal of the district of Arkansas. Whipple was district attorney and Catterson marshal at the time of finding the indictment. Both these gentlemen had been more or less active in their opposition to Senator Oayton's election to the Senate through a con. est al- most unprecedented in its bitterness, whether viewed polititjally or personally. This was particularly true of Colonel Whipple. Senator Clayton may have been influenced, and doubtless was, not a little, in his efforts to procure their removal by their kncwn opposition to him,as also by what he 3steem6d their unwarranted course in connection with the procurement of the indictment. It is not material to inquire whether there was anything in their conduct touching the latter matter to warrant his feelings and judgment, since he did no more than what other Senators are constantly in the habit of doing touching the displacement of their enemies and theappointmentof their friends. That the action of these parties in connection with the indictment was not the mov- , ing cause of his opposition is dear enough frona the fact that he was seeking their removal before it was presented, as abundantly appears from their own -testimony, wherein the alleged charge is 'found. In hi& conduct in this respect we fail to see any official misconduct, and especially so as it appears that since these removals the Executive and Department of Justice have been successively, and more than once, appealed to by Colonel Whipple and General Catterson and their friends for reinstatement, and have been as frequently unsuccessful. Whether it is ri^ht or wrong for one in his position to use his official influence to procure removals is not for us to say. Weonly stateand find that he exercised the right or privilege taken by, if not conceded to, others; an act which, if regarded as tending to "impeach his official character and conduct," would be equally so, probably, of every member of this body. Turning now from these matters arising subsequent to the election of Senator Clayton we come to the case made tom-hing his election, and here a preliminary inquiry arises: What have we to do with that election? Eecurringto the resolution raising the cbmmittee,'and which must be accepted as the charter of our power, we remark again that the report of Mr. Scott says that the testimony .(and to which we must go to ascertain the charges, for there is nothing else) "tends to impeach his official conduct and character." Then, the resolution under which we are acting directs us to in- vestigate the charges therein contained against Senator Clayton as a member of this body. Now, giving to the record a fair and just construction, have we anything to do with his election or the circunastances connected therewith? "Upon this subject at least o,ne member of the committee en- tertains the gravest doubts. The argument suggesting and supporting these doubts is as follows : In respect to the subject-matter referred to a committee, the rule is that they are not at liberty to entertain any proposition or go into any inquiry which does not come within the direct purpose for whic) I the committee was appointed, as expressly orclearly implied in the authority conferred upon it, or vhich is not grounded upon some paper which is referred to the consideration of the commit- tee. vCushing's L. and P. of Leg. Pro., ss.l906.) This is upon the clear principle that a committee, being ^ creature of the body giving it life, is bound by and is not at liberty to depart from the order of reference. If any other rule were adopted, and it could depart from the order of reference, all business w^ould, of course, be at an end, and endless confusion and contests between the body and the committee would ensue (ss.l907). Now, it is suggested that inasmuch as the report of the "joint select committee " by Mr. Scott referred alone to testimony tending to impeach the official character and conduct of Senator Clay- ton, the order of reference took in and contemplated such matters alone, and that the res'iution raising thiscommitteemust be construed in the light of that report and the subject-matter of inquiry be thus limited; and hence, when it is directed that the committee shall investigate the charges contained in said report (including the testimony of Wheeler and Whipple), it was intended to cover and include only those bearing upon such official conduct and character, for in that report there is nothing said about fraud or illegality in his election. But here it is. perhaps, answered that the proposed inquiry is grounded upon the paper (the testimony aforesaid) refen-ed for our considera- tion. To this the reply is: true, but that paperraust properly be construed as referring to such charges only as relate to or are connected with the principal inquiry; that is. official conduct or character. If not, why did the committee omit all reference to his election and the circumstances latte-iding the same? The answer is they had power and authority thems'elves to inquire into all matters hearing upon the state of affairs in the State, including frauds in elections, but not to such as bcreupoh the condjuctof a member of the Senate or House after his etection. Conceding, however, that this view limits the inquiry unjustly, let us look at the charges them- selves. And here the already great length_of this report admonishes us to brevity, and especially 60 as, when ^he testimony shall be finally summed up, it will necessarily demand a large portion of POWELL CLAYTON. 391 our attentidn. This part of the case suggests two Inquiries: First. As to matters occurring an- tecedent to the assembling of the general assemblywhich elected Senator Clayton. SecondT Those immediately leading to and connected therewith. - . Upon the first wc are not disposed to enter. Our warrant for this is found in the principle ob- tjiining.'indtbc nature ol the testimony, or rather the absence of it. It seems to us that upon prin- . cii>lo wo cannot enter \ipon the numberless inquiries which would always be suggested in cases of this obarac'tei- preceding the elcotion of the members whose duty it is to elect a Senator, unless sueli conduct and transactions elcariy relate to and bear immediately upon thealleged frauds connected with such Senator's election. Not only so, but it would seem that they must so color the trans- action of tlic linal election of the Senator as to lead to the conclusion that but for them the result would have been diflerenl.. Thus, suppose Senator Clayton used reprehensible means with the hope of securing the election of some member or members in one or more districts, and such persons were cither not elected or failed tovotefor him, or, if voting for him, he had aclearmajority outside of those improperly elected, would any one say or claim that his seatoould be declared vacant? Or KUpi)oso, as in the case before us, that the two houses of the Arkansas legislature, being the judges uf I lie election. qu;ilitieation, and return of their own members, have heard and investigated all al- leged i'.auds and given the members their seats, can this committee or the Senate go back of that iiciion, and in this inquiry, whether treating it as a proceeding direct or collateral, say that such nieinbciM were imi)roperly elected, returned by the use of corrupt means, even if originating with Senator Clayton himself, and that therefore he was not legally elected? The statement of such propositions furnishes its own answer. Neither legally dor logically could it be olahned that this committee would be called upon to go into a field so boundless, and which when explored would throw no legitimate light .upon the controversy before us. And therefore we nowincline to the opinion that all the testimony bearing upon the transactions before the assembling of the legisla- lature, except as it is connected with and gives color to the election of Senator, except as it tends . to show that it was brought about by fraudulent and corrupt means then used, may be dismissed. A large portion of the testimony is of this character. As we read the record Senator Clayton re- ceived a clear majority in each branch of the general assembly outside of those claimed to be thus fraudidently elected, and some of those whose elections are thus assailed voted against him, and . this alone is all that need be stated upon this subject. The efforts in this direction have been most extraordinary — the statements of numberless persons having been introduced upon the theory that, as they were friends of Senator Clayton, friendly to his election and exerting themselves in his be- Iiair— so there was a so-called conspiracy, and what all and each of said conspirators said would bind all. To admit that a* conspiracy has been shown in any legal sense would be to set at defiance all the rule-i of law governing in such cases, and make every candidate in a bitter and protracted ntest of tiKS character responsible for all that was said and done by alibis friends, the foolish and the discreet, the good and the bad, the honest and the dishonest, alike. While we would do nothing to encourage fraud.or to shield from responsibility any one seeking ofiiciai position_j, and especially a position so high as a seat in this body, we would not enter a field of mere speculation and adopt a rule which is the most doubtful in theory and finds no support in practice or precedent. It only remains to inquire into the alleged frauds connected with the election. And here the principal, if not only one, is that Senator (then Governor) Clayton issued to Hon. John Edwards a certificate of election to the House of Representatives of the present Congress, upon a corrupt bar- gain or agreement that he was to receive in return for the same the support of the Democratic mem- bers of the general assembly. If this charge is not maintained, we hazard but very little in saying that there is nothing left of this case. And a very brief statement will show how utterly ground- less it is in fact. With the question whether Edwards was or was not in fact elected we have nothing to do. He was accepted and recognized as the Democratic candidate for Congress, his competitor heing Hon . Thomas Boles. Governor Clayton supported Boles in that election by his voice and influence. At one t4me there were two Republican candidates in the district for Congress (Judge Boles and Judge .'dearies). Through the influence of Governor Clajjton and his friends; Judge Searles was induced to, withdraw, lea-ving the field to Judge Boles, and this, too, notwithstanding Judge Searles was recog- nized as the more pronounced friend of the governor. That the object was to promote harmony and secure ultimate political success seems to be fairly well established. In Pulaski County especially the Republican party was divided, one side being the warm and de- voted friends of Governor Clayton, the other his bitter enemies. To some extent this state of things obtained in other parts of the State. At the election in this county in 1870, and particularly in the cif^of l.iltle Eock,itwas alleged that certain frauds intervened whereby illegal votes were cast for Boles, or if the votes were not illegal they were received and counted by judges selected without authority of law, and that their action was both illegal and irregular. Into all thesemattera we do not propose to enter, as our purpose in this connection is to state some facts generally, and then leave this part' of the case. By the statute of Arkansas it is the duty of the secretary of state, in presence of the governor, within thirty days aft' r thetime allowed for making the returns of the election, if the returns are all received, to cast up and arrange the votes from the several counties for member of Congress; and of thegovern6r,immediately thereafter, to issue his proclamation declaring the person havingthe highest number of votes to be duly elected, and he is also required to grant a certificate under the seal of the State to the person so elected. Trom the returns made to the office of th ^ secretary of state there was no question as to the result. Boles was clearly elected. The duty of the governor under the law is ministerial, not judicial. By strict law he has no power to reject votes, nor to direct the counting of those returned by other than the proper officers. In this case, however, it was brought to his attention that frauds had been i;erpetrated, or, at least, irregularities had intervened, which should be examined into. In our opinion, under the law he had no power to enter upon such an inquiry; nor do we understand that A case was penaing in the supreme court of the State involving the legality of the returns made from certain wards in the city of Little Hook and some precincts in the county, the determination of which was regarded as important in settling whether Boles or Edwards was elected to Congress. ' The governor determined to wait, and did wait, that decision. The same question was brought to the attention of the legislature and referred to a committee, and he declared his purpose to await that action . In the wards referred to two polls were opened, one by the judges selected by the by- stai^ders the other by the judges regularly appointed or chosen.' At the first the votes were almost unanimously for Boles, at the other very largely for Edwards. Counting the first and excluding the second. Boles Was undoubtedly elected ; if the latter were counted and the first excluded, and ex- cluding votes for Boleg in some other places, which it was claimed were fraudulent, then it was insisted that Edwards was elected. . ,„ .,,..,,.,.. .., , By the decision of the supreme couit and the report of the committee in the legislature, the eleo- liona held by the regular judges were determined to be the only legal ones, and following these, decisions in part the gqvernor gave the ccrtiflcate to Edwards. In this he may have been mistalceq, 392 SENATE ELECTION CASES. But It would certainly be most extraordinary to say that th,e ezecutlTO of a State may not follow^, the decision of itg highest judicial tribunal — ihat he may not net upon the proceedin^rof tU<; legis- lative branch. As to the returns and the election , there was intense excitement. Factions were arrayed against each other, and eaeU charg^ing frauds without stint upon the other. If Governer Clayton mistook his duty, it was, atlea^t, quite as much on the side of law and order as'to have acted without in- vestigation and in disregard of the action of the other co-ordinate departments of the State govern- ment, if it is said — and this is the cfl'ort, from the testimou«y — that the jxidgcs and legislature were actuated by base, unworthy, and corrupt motives; that they were all moved by him and in his in- terest, we can only answer that a charge so serious is neither probable nor reasonable. It would certainly require the very stronsest proof to justify us in believing a charge so sweeping, affecting, as it would, almost the legality and validity of the entire acts of its officers, legislaiive, executive, and jiidicial. . ~ But this is not all. General Edwards was given "the certificate on the 20th of February, 1871. Gov- ernor Clayton was not elected until the 15lh of March. True, he was elected at what is known as his first election on the llthof January, 1871. But this election he declined. He holds his place now under the second election. At this but one Democrat (and he of doubtful political status) in the house voted for him, and he swears most positively that his vote was not influenced by the Edwards m'at- ter in the least. In thesenate, if any voted for him, he had, without counting them, a clear majority of all, and as to those voting for him, if any, there is no evidence that they cared anything more for Edwards than Boles. It appears, then — First. ThatClayton was the political friend of Boles and favored his election. Second. That in issuing the certificate he discharged what seemed to be, and what he had good reason to believe to be, his duty, in follovping the decibion of the supreme court and the act ion of the legislftture. Third. Nothing approxi^mating a corrupt motive in exercising the power to inquire into the legal- ity of the returns is shown. Fourth.' He gave Edwards the certificate before he was elected the second time, and after he had announced, at least, a contingent purpose of remaining in the office of governor. Fifth. There was no necessity for a bargain with tne democrats in the legislature, for they were but too willing; being in theminority and without hope of being able to elect one of their own polit- ical friends, in vievsr of what tiiey considered to be their wrongs and the wrongsof their friends at the hands of the governor, we say they were but too willing to harve him elected to the Senate and thus secure his resignation as governor, trusting and believing that a change could not possibly be worse for them. Sixth. He did not receive any votes under any such agreement, and, least of all, any number suffi- cient to influence the result. And hence we conclude that nothing can be plainer or more manifest than that this charge is totally and entirely unsustained. Something is said in thetestimony of Whipple about railroad subsidies and bonds, and the action of Governor Clayton in that connection. This relates rather to his action as governor, with which we have nothing to do, than to the Senatorial election. So it is attempted to show or start the theory that he procured the resignation of Whiteias secretary of state, and appointed Jolinson, the lieuten- ant-governor, to the place made vacant by White, also the election of Hadley as president of the senate — all in pursuance of a corrupt arraneement by which he was to be elected to the Senate. It must be admitted that the stroke was a bold and most.successful one. Governor Clayton had said to his friends from the stump and elsewhere that, while he was a candidate for the Senate and was desirous of success, he would never take an election and leave the State administration in the hands of Lieutenant-Governor Johnson. He was elected Senator in January and an effort was then being made in the courts to remove the lieutenant-governor. This was unsuccessful, and Governor Clay- ton declined the office of Senator. At the first election several of the Democratie members voted for him for reasons already stated. At this time and for weeks all parties were excited ; the members were leaving the legislature to break a quorum ; crimination and recrimination were the order of the day, and each party was struggling for supremacy. Everything was in disorder and confusion. The result no man could tell. At times they were apparently on the eve of an outbreak, if not of revolution. Then it was that White resigned his office of secretary of state. He was the friend of Governor Clayton, but apparently not more than of the other side — wanted to and was willing to serve him. Johnson was willing to take that place and vacate that of lieutenant-governor, and'he was accordingly appointed. Hadley was elected presiding officer of the senate; Clayton was mode Senator, and Hadley became governor. If in all these changes there was nothing corrupt upon the part of Governor Clayton, then they are as harmless, so far as this investigation is concerned, as if they had occurred years before, or in another State, and without his suggestion or knowledge. The only testimony which tends to show anything of the kind is that of White, who swears that months afterward he received some money through Senator Clayton, but he explains what it was for, and states positively that it was not in consideration of his vacal ing the office of secretary of state. But, without more, we here leave the case. In our opinion the charges, if such they can be called, are not sustained. The testimony fails to impeach the Senator's official conduct or character. All which we shall take occasion to show by a fuller reference to the testimony and record, when other duties will permit and it may be the pleasure of the Senate to receive the same. Respectfully submitted. GEO. G. WRIGHT. I concur in the foregoing, as touching the testimony which " tends to impeach the official character and conduct of a member of the United States Senate," reserving a recurrence to the mass of testi- mony when opportunity offers for a full report. LOT M. MORRILL. VIEWS OF THE MINOKITY. JUKB 10, 1872.— Ordered to be printed, to accompany the report of the committee to inquire Into cer- tain allegations against Hon. Powell Clayton. Mr. Norwood submitted the following as the views of the minority : Protest agadnst the r&pori of the majority of the comnvittee appointed to investigate tlic charges against Hon. Powell Clayton. As a member of the special committee of three, appointed by the Senate to investigate certain phai^es made against Hon. Powell Clayton. United States Senator, and to report the result of «uch POWELL CLAYTON. 393 Investlgfatlon to the Senate, 1 most respectfully protest against the action of the majority of that com- mittee in submitting their report a., this time ; arid in justitiuation of my course and in support o( this protest, I beg herewith to submit llie following facts and eoiisideiations ; This investigation, as stated in the report of said majority, commencecl i-n the 18th day of .Jan- uary last and continued almost daily (Sundays excepted) until the 14lh day of May. Thirty-eight witnesses were examined, and their testimony averages, each, about li5 manuscript foolscap pages. Durmg the examination but two of tlie committee were generally present. Somet.mcs all were present, and often, by consent of Senator Clayton and James L. Hodges, who occupied the po.'ilions before the committee of prosecutor and defendant, but one of the committee wus in attendance, the three alternating, so that no one memberof the committee was present during the whole of the investigation. Hence nopne i^eniber of the committee heard the whole testimony. Duty com- pelled our attendance in the Senate Chamber, and at no time did we sit while the Senate was in session. And as we sat generally from 10 a. m. to the opening of llie session, many otlier duties made it necessary for one and anotber of the committee to t>e abdent. A few days alter the majority of the committee determined to close the investigation, the chair- man convened the committee to determine what course should then be taken The resolution fix- ing the day of adjourinuent on'the 29th of May was then in force, and we supposed Congress would adjourn on that day. In view of the immense volume of the evidence, which no one member of the committee had read through, in consideration of the brief time to elapse before the day then set for adjournment, and also of the determination of the committee to revise the record before having it printed, for the purpose of expintging such as might be irrelevant and much that was conversational between the counsel antl the committee during the examination of witnesses, and thus to reduce the volume to a condensed and readable form, the committee at that time divided the manuscript into three parts, and each member took a third for the purijose of revismg it and noting such portions as he considered might be expunged without detriment to the record. We discussed the probal>ility of being able to make a report at the present session, and in view as to report before the next session of Congress. It/ was further agreed that we should, aft- r examining the evidence and noting the irrelevant matter, come together at a time left indefinite, and consider well whatever each had marked us in his judg- ment unnecessary to the record, and tlie remainder would then be printed. We would then exam- ine and weigh the relevant testimony, ant! make a report to the Senate. Thus the matter remained until about a week a^jfo, when tlie chairman assembled the committee and suggested that a report bS made. In consideration of all thut bad oconrred, as stated atiove,T and of the fact that thecommittee had taken no action on the testimony preparatory to making a . fair, full, and tinal report, I uioved that the testimony be printed and that the original purpose of the committee be carried out, and that a report should be made at the next session of Congress. This suggestion was not adopted, and on the 3d' day of June instant the chairman submitted to the committee for its action the document now presented to the Senate as the report of the majority. The majority admit that a careful examination of the testimony has not been made; that they submit " a conclusion reached from their recollection of the evidence at the time it was fiubmitted and their subsequent examination;" that the report is only "partial;" that they intend to make '•a fnrtlier and linal report; " that they withhold the testimony, and recommend that the Senate take no action on their report until it can "act with greater safety and intelligence." i do not intend to enter on a consideration of the merits of tiiis case. I regard the action of the majority of the committee as premature (as they admit) and unprecedented. What jiower has a special committee to make a report by halves? Besides, what necessity exists for a report at 'his time? It is true the majority say that justice to the Senator accused requires it. But why and how'? What injury can follow by waiting until our labor could' be completed? Confese-edl.v it is incomplete. Confessedly the evidence must be thoroughly examined and another report must be made. The report submitted refers to but a small portion of the material evidence taken by the commit- tee, and while I will not express an opinion as to the effect of the testimony until I shall have given it that careful and serious consideration which the gravity of the charge and the dignity of the Senate require and demand, I will say that I think the conclusion of the majority very hastily drawn. Keferiing to the testimony of Wheeler and Whipple, they extract the following as coDstitnting the charges (if such they can he called) upon which this investigation was instituted. CERTIFICATE TO EDWABDS. [Extract from the testimony of Edward Wheeler.] "Examined hy Mr. Blair: "Question. "Vyhat was the reason assigned for Clayton acting as he did?— Answer. It was generally regarded that he expected by supporting Edwards to gain some Demo- cratic Votes in the legislature for United States Senator. "Q. That it was for his own interest and to secure his own election as Senator? — A. It was so understood; yes, sir. "Q. That is the explanation of it? — A. That is, the object of the frauds in Hot Springs County was to put Clayton men in the legislature; the objeqt of the frauds in Pulaski County was to put Democrats in the legislature, for the Clayton faction had a very small vote in that county and the Democrats were given seats in the legislature. It was claimed, and it has been sworn to by some prominent Democrats, that General Edwards was given the certificate upon a trade made by Senator Clayton that certain parties would not contest certain seats in the legislature. That was the testimony de- veloped in the investigation made iu the Boles and Edward.s contested- election case." [Extract from the testimony of William Gr. Whipple.] " Examined hy Mr. Blaik: "Question. W))at was the motive of the governor in giving this certificate to a man 394 SENATE ELECTION CASES. who was not elected? — Answer. Of course it is very hard to tell what his motive was. It is generally understood that it was done in pursuance of a trade. '■Q. Of a trade? — A. Yes, sir; that is the general understanding. " Q. What was the trade ? — A. That the Democratic members of the legislature should support him for the Senate of the United States. ^' Q. Did they do it?— A. Yes, sir; they did. "Q. And the governor carried out his part of the bargain? — A. Yes, sir; it seems very plain that he did that. " Examined by the Chaieman (Mr. Scott): "Q. There was a tnajority of Republicans in the legislature that elected Governor Clayton to the United States Senate? — A. Yes, -sir. " Q. Aird when these two divisions came into conflict in regard to electing a United States Senojlor, you say the Clayton men entered into a corrupt combination with 'the Democrats by which the Democrats agreed to vote for Governor Clayton for the Senate (if the United States in consideration of Governor Clayton giving a certificate of elec- tion to the Democratic candidate for Congress in the third Congressional district of the Stntc? — A. That is believed by^ many persons. " y. Yoa have already stated that here as the general belief in the State?— A. Yes, sir. "Q. Is that your belief ? — A. Well, it is my belief that Clayton made some trade with the Democrats. Precisely what were the terms of the trade I would not undertake to say. ''(i. You have already put it in that form in your testimony. I want to understand if that is your belief — A. I do not think I put it in exactly that form. "Q. You stated that to be the general belief ^- A. I think it is the general belief. "Q. Do youincludeyourself among those who entertain that belief? — A. Well, I have reason to believe it, and I know of no reason why it is not true." ELECTION TO THE SENATE. [Extract from the testimony of William G. Whipple.] . "Examined by Mr. Blaik: "Question. What condition of affaii-s in Pulaski County was disclosed by the investi- gation, so far as it went? — Answer. There were sliowu many instances of fraudulent reg- istration; parties who were not voters were awarded certificates by the registrars; there were many cases Of parties registered in the wrong ward of the city or the wrong pre- cinct in the county. For iustance, parties would present themselves in the Second ward to be registered, and would be registered in Big Rock Township. There were many in- stances of that kind, where parties were registered in the wrong places. " Q. In whose interest were these frauds perpetrated ? — A. In the interest of what was known as the Clayton party. ' ' Q. For the purpose of electing men who would support him tor Senator of the United States? — A. Yes, .sir; and in many cases to defeat the Republican candidates. " Q. Who would not vote for him as Senator? — A. Who would not pledge themselves to support him for the United States Senate. That was the case in Pulaski County ,^ where the Clayton vote was understood to have been thrown to secure the election of Democratic candidates lor the legislature as against the Republican candidates, because the former were expected to support Clayton and the latter were not. " Q. Did they support him? — A. They did support him; yes, sir, they voted for him for United States Senator. ' ' Q. As I understand. Governor Clayton was elected Senator, and declined to accept? — A. Yes, sir. " Q. What was his reason for declining to accept when first elected?— A. What reason did he assign? " Q. Yes. — -V. The reason that he assigned was that the interests of the Republican party in Arkansas required that he should remain governor. But that was not the gen-' eral understanding at all. "Q. What was the general understanding on the subject? — A. The general under- standing was that he declined the election to the United States Senate because, if he went to the Senate at that time, he could not leave the government of the State in the hands of his friends. ' ' Q. Who would have been governor if he had not declined to go to the Senate at that time? — A. The lieutenant-governor, James M. Johnson. "Q. Was he a friend of Clayton? — A. Ho v,as not a friend of Clay ton at that time; he was a Republican. " Q. How did Clayton subsequently arrange that, when elected the second time? — A. prj the eve of the second eleotiog, I t|jiiil? th^^ ^17 before, Ijientgnapt-Govprnor Jojiflson POWELL CLAYTON. 395 resigned his office as lieutenant-governor, and was appointed secretary of state by Gov- ernor Clayton, Secretary White, the previous secretary, having resigned. -Thereupon, Senator Hadley was elected president pro tempore of the senate, and became acting gov- ernor of the State upon the election of Governor Clayton to the United States Senate. I'Q. Heisundferstood to bea friendof Clayton?— A. Governor Hadley? "Q. Yes. — A. Yes, sir; he is understood to be a Clayton man, out and out." INDICTMENT. [Extract from the testimony of Edward Wliceler.] "By Mr. Blair : "Question. Were you a member of the grand jury of the United States court last spring?— Answer. Yes, sir; and its foreman. " Q. When was the sesion of that court held ?— A. It commenced on the 10th of April last. "Q. Were any indictments found by that grand jury under the act of Congress known as the 'enforcement act?' — A. Yes, sir; there were several found. "Q. Against whom? Who were indicted? — A. There were six or seven different par- lies indicted in Hot Springs County; judges, and clerks of elections, and registrars; also some six or seven in Clark County for frauds iu elections; and Governor Clayton, of Pulaski County, was indicted. " Q. What was the oiiense for which Governor Clayton was indicted, and what was the evidence upon which he was indicted? — A. The evidence was entirely documentary, being the returns in the office of the secretary of state. The witnesses were the ex-secre- tary of state and the deputy secretary of state. They brought the returns, or a tabular statement of them sworn to, and laid it before the grand jury. " Q. Thase returns were of what election, and in what counties?— A. In the election for members of the Forty-second Congress, and in the counties composing the third Con- gressional district of the State of Arkansas. I do not now remember all of the counties by name. It is the district in which the county of Pulaski is embraced; our county is one of the counties of the third Congressional district. " Q. What was the action of Governor Clayton that led to his indictment? — A. The first that I, or any member of the grand jury, knew of the matter was the bringing of the case to our attention by the district attorney ; he came to me with a list of witnesses, three in number, which he wished to have subpoenaed. He said the case had been called to his notice, and he wanted it brought before the grand jury for examination. I sub- poenaed the three witnesses: the ex-secretary of state, the deputy secretary of state, and General Edwards, the person to whom the certificate of election for Congress had been given by Governor Clayton. It was claimed that Governor Clayton had violated certain sections of the enforcement act in giving the certificate of election to General Edwards, when the returns, as exhibited to us by the secretary of state, showed that Jvidge Boles had been elected. General Edwards presented a copy of his certificate of election, and of the proclamation of the governor, stating that, according to the returns on file in the office of the secretary of state, General _ Edwards had been elected. But the returns, as exhibited to us, showed that Judge Boles was elected by some 2,130 votes, I think it was, on the All vote, counting the votes at both polls. There were allegations of fraud on both sides. But giving the governor the benefit of every doubt, the least majority for .Judge Boles that we could figure out was some 800 or 900; I forget the exact figures. That was according to the returns shown to us; and upon that showing the indictment was found. "Q. Under what part of the act was the indictment found? — A. I think it was the t wenty-second section of the enforcement act. And our State laws require the canvass of the returns to be made by the governor, assisted by the secretary of state; the govfernor is made the canvassing officer. The law was explained to us by the district altorney, and it was claimed that the governor had violated the twenty-second section, I think it was, of the enforcement act; the one providiiig that if any officer shall issue a fraudulent certificate of election to any party, he shall be amenable, &c." Again: "Q. And the grand jury found that that was a fraudulent certificate ? — A. liiey found that this proclamation of the governor, issuing the certificate of election to Edwards, was not in accordance with the returns in the office of the secretary of state as laid before us." ' ' By the Cha ieman : ' ' Q. What was the specific offens& with which the governor was charged ? — A. I think the district attorney, who is in this city, has a copy of the indictment, and he can probr ably explain these matters much better than I can. ' ' 'Q. The other case of indictment you have referred to is one against Governor Clay- 396 SENATE ELECTION CASES. ton, for giving the certificate yon have read? — A. For furnishing a certificate of election to John Edwards. "Q. The Stale law, yon say, makes the governor the canvasser of the returns? — A. It makes it the duly of the governor, within thirty jdays after the election,i to make a can- vass (if the votes, make proclamation, and issue certificates of election. "Q. in the discharge of that duty is the secretary of state associated with him in any capacity which would invest him with authority to decide; or doe.i the governor merely consult him? — A. His duty is merely clerical; the governor is the canvassing officer proper 1 think the law states that the canvass shall he made by the secretary of state in'the presence of the governor, and the governor shall, by proeiamation, announce the result. " Q. It makes it the duty of the governor to award the certificate to the persons whom he judges to he elected?— A. Yes, sir. "Q. The responsibility of the decision is upon the governor? — A. Entirely. " Q. And it was because, upon the evidence presented, you believed that the governor had decided wrongfully? — A. Yes, sir, according to the returns laid belbre us. "y. You found a true bill against him? — A. Yes, sir. " Q. And that case is now pending for trial in the United States court? — A. Yes, sir." Again: " Q. Yon heard, of course, nothing but the evidence on the part of the Government; there was no deliense ? — A. Of course there was no defense. "Examined by Mr. Pool: , "Q. You sought for no facts as explanatory of the governor's action? — A. No, sir, we knew of nothing; we could get at nothing but the returns. " Q. Was any witness sworn belbre the grand jury other than the secretary of state, the A. The ex-secretary of state. The present secretary of state was not then in the city. He had but recently entered upon the duties of his office, and his chief clerk was made deputy secretary of state, and he was belbre us in regard to the records. "Q. In relation to the authenticity and correctness of the report? — A. Yes, sir. And General Edwards was before us as to the correctness of a copy of the certificate whiih had been furnished us. "Q. And you examined no witnesses outside? — A. No, sir." These witnesses testified more at length before the "joint select committee," &c.; but the foregoing it is believed contains all that is necessary to show the precise charges made. They may be considered under three heads, to wit, certificate to Edwards, election to the Senate, and corrupt bargain. Without discussing what would be theeffijct if any or all these charges were su.stained, or the propriety or power of this body to consider the same, interesting and important though such a question might be in a proper case, we proceed at once to state our views of the case as submitted to us without leaching the inquiry indicated. Disregarding, then, chronological order, we shall consider first the matter of the in- dictment. It appears that Senator Clayton was indicted for the violation of the twenty-second section of the enforcement act, in fraudulently giving the certificate of election to Gen- eral Edwards when, as is claimed, it should have been given to his competitor, .Judge Boles. . He was governor, and as such did give the certificg,te of election to General Ed- wards. The language of said section, so tar as here material, is that "any officer of any election at which any Eepresentative or Delegate in the Congress of the United States shall be voted for * * * who shall * * * fraudulently make any false certificate of the result of such electioii in regard to such Eepresentative or Delegate * * * shall be deemed guilty of a crime," &c. By the law of Arkansas it is pro- vided that the secretary of state shall in the presence of the governor, or, &c. , cast uj) and arrange the votes of the several counties, or {lersons voted for as members of Congress, and that the governor shall immediately thereafter issue his proclamation declaring the ■ person having the highest number of votes to be duly elected, and that he shall grant him a certificate thereof under the seal of the State. It seems that the secretary of state did thus cast up and arrange the votes in the elec- tion between Boles and Edwards. It also appears that by the showing thus made Boles and not Edwards had a majority of the votes, and was hence apparently entitled to th^ certificate. • This canvass of the votes took place within thirty days after the election (the election being on the 8th of November, 1870), and yet proclamation was not made nor was the certificate issued until in February, 1871. Immediately afler the election divers affidavits and some documentary evidence were presented to the governor, tending to show that in one of the counties (Pulaski) of said Congressional district Irauds had intervened which, being considered^ would exclude a POWELL CLAYTON. 397 large number of votes cast for said Boles and thus elect Edwards. About the same time proceedings were instituted in the stipremo court involving the validity of said election, and the votes thus claimed to be Iraudulent or irregular, aiid they were afterward by thejudgment of said court determined to be fraudulent aud illegal. To state the claim more particularly it was maintained in said affidavit and evidence, as also in\said pro- ceedings in court, that the polls in some of tho wards of the city of Little Eock (Pulaski County) and some precincts in this county were taken possession of by force, violence, and contrary to law, judges of election insia,lled without right, and other illegalities and irregularities practiced, and notwithstanding the proper and legal judges a\^o held an election at the appointed places, the votes received at the illegal polls and by the judges illegally chosen were the votes received and canvassed. 'When the legislature met the same questions were there made as to the members of the house and senate voted for in said localities at the same time, and claiming seats under such alleged illegal ' election, and it was determined adverse to their claims. After all this the governor issued the certificate to Edwards. It is claimed by those prosecuting the charges here that even excluding the so-called illegal returns Boles was still elected. This we are not prepared to concede, for it seems very clear that there is one method of canvassing the returns, and not at all without warrant in the figures if certain lacts are admitted, which would elect Edwards. Jhis will be seen in the following statement: By the returns from all the counties, as canvassed by the secretary of state, it appears that Coles received 10,344 votes; Edwards received 8,211 votes. The governor excluded from the count the votes cast in the First and Third wards in the cily of Little Eock, and in certain precincts or townships in the county of Pulaski, in all of which the elec- tion had been declared illegal by the legislature, of which excluded votes there had been cast lor Boles 2,385, which being deducted from Ihe above number, counted for Boles, leit him 7,959, and of which excluded votes there had bee;i cast lor Edwards 202, which being deducted from the above number counted lor him left him 8,0{J9; thus showing a majority for Edwards of 50 votes. But conceding that Boles was actually elected and hence entitled to the certificate, it would by DO means follow" that this indictment was well founded, nor that Senator Clayton was consciously and willfully violating his duty or conniving at a violation of the law. We concede that in strict law the functions of the governor in relation to the proclar mation of the result and granting the certificate were ministerial and not judicial. His duty was simply to declare the result and deliver the certificate of his election to the party appearing to have a majority by the canvass thus made. He had no power strictly to go behind the canvass and inquire into the alleged frauds; for the returns were to all appearances legal and formal, and the evidence aliunde was lor Congress if the question was raised of their illegality, and not for the executive. But it by no means lollows that he was guilty of the fraudulent act forbidden by the enforcement act if he did go behind the returns. In the first place he was not amenable under tfie statute for this act, because in our opinion he was not an "officer of any election" within the meaning of the statute. This was expressly so held by the circuit court of the United States Jbr the district of Arkansas, his honor Judge Dillon presiding — a jurist of the clearest head, the most incorruptible integrity, and the finest legal attainments — when the question came before him in the indictments, and of its correctness we think there can be no reasonable doubt. But if such officer, the governor might well in the utmost good faith, though without strict legal warrant, esteem it to be his duty to go behind such returns ifit was brought to his atten'tion thatfraud had intervened. A mere mistake as to his powersand duties — the exercise of judicial instead of ministerial powers in that connection — would by no means establish the required fraudulent intent. And when we rememberthe circum- stances that such frauds were brought to his attention ; that he supported Boles and not Edwards in that election; that he exerted himself to procure the declination of a third candidate (Judge Searles) who claimed to be a regular Eepnblican candidate, and whose candidacy endangered the election of Boles and rendered more probable that of Edwards; that Boles was recognized as the candidate of the party with which the gov- ernor has continually acted,-and that Edwards was the candidate of the opp9sition; that at least some evidence was furnished to him of the alleged Irauds; that the bighest judi- cial tribunal of the State had declared against the validity of such returns; that the legislature had reached the same conclusion— we say when all these things are remem- b^ed wo should be compelled to overturn all rules of evidence to say that, while he acted without warrant of law, he also acted fraudulently. A party may mistake the plainest legal duty, and yet have no criminal intent. Ard so we find in this case that the gov- ernor if an officer of election, did not act fraudulently, hence was not guilty of the 398 SENATE ELECTION CASES. offense charged, and that thus fax there is nothing to "impeach his official character ol conduct as a memher of this body." Second. Alleged frauds leading to and connected with his election as Senator. We inquire in the second place into the charge of fraud leading to and connected with his election as Senator. By reference to the testimony of Whipple (set out above) it will be seen that this is based upon alleged fraudulent registration, and some supposed bargain or arrangement by which Johnson Resigned his office as lieutenant-governor, taking the place of White, who resigned as secretary of state. Hadley becoming governor and Clayton Senator. Than this l^ew things could be more vaguely stated so far as the testimony of Whipple discloses, and yet this is all, it is believed, to be found therein approximating a charge in this connection. We have sought not to put too narrow a construction upon the lar. guage used, nor have we been in the least inclined to limit the investigation within limits even so narrow as the charges here contained under the most liberal construction. And hence, upon the theory of the prosecution, that Senator Clayton, with many others, his friends, had conspired by the use of unlawful and corrupt means to secure his election to the Senate, much testimony was received as to appointments to office figuring in and preceding the conventions which nominated candidates for the legislature, the issuing oi' State bonds to railroad companies, certain influences which it was claimed were brought to bear on members of the legislature looking to his election, and other like matters, though nothing of the kind was charged or pretended in the testimony referred to us. Of course a most material preliminary inquiry would be to what extent a party thus charged is to be affected by the acts, conduct, admissions, pledges, or promises of his friends, and hence the theory was that there was a conspiracy for the purpose indicated, and that what was said or done by one in furtherapce of the common purpose was said or done by all, and that upon such hypothesis Governor Clayton was bound by all that was said or done by those engaged in the common design. As stated in the " partial report, " much of the testimony was received upon this theory of the prosecution — it being conceded that if the so-called conspiracy was not estaW ishedil was in every respect incompetent. Since making thatreportwe have carefully examined the testimony, and feel bound to hold that it falls far short of establishing the alleged combination, and hence that a large portion of the testimony should be excluded. We therefore report only such as we believe to be competent in this view of its scope and effect. We shall be pardoned for stating the familiar proposition that to constitute a conspir- acy there must be a combination of two or more by concerted action to accomplish a, criminal or unlawful purpose or to accomplish a purpose not in itself criminal or unlaw- ful by unlawful or criminal means. The conspiracy is the gist of the offense, and it ia not necessary that any act should be done in pursuance of such unlawful agreement. To make the acts or declarations of another evidence against the party charged the common design must first be established, and it will not do to connect the party charged or bring him into the alleged conspiracy by the admissions of- others without his knowledge or without at least some recognition by him of their right to speak for or bind him. In this case the purpose to be accomplished was neither criminal nor unlawful. The parties confederated, if at all, to accomplish a proper purpose by the use of unlawful or criminal means. And the whole of the case is, to put it in its strongest light, against Senator Clayton; that he is to be bound by all that was said and done by his friends, and simply because they were such, whether at the State capital or elsewhere, in their efforts to secure his election. We do not stop to determine whether these acts were or were not illegal, whether they can or cannot in all respects be defended; we only hold that there is no particle of testimony warranting the conclusion that he ever combined with them to use imlawful or criminal means. And if he is to be held responsible Jbr every indiscreet remark made by overzealous friends, by every inducement just or other- wise held out by them to members of the legislature, for every appliance made use of by political and personal friends in the election of the members thereto, for the alleged combinations made in connection with proposed" legislation, for all the alleged frauds in connection with registration in some parts of the State near and remote alike — we say, if this be the rule, few men would want friends in such a contest, or would be safe, however honest and upright their own conduct. Many things were said and done by iriends of Senator Clayton which we might not approve. Nor would we for a moment recognize any rule which would not exact or re- quire the highest integrity and most honorable conduct in contests of this character. On the contrary, we would condemn without reserve every step, every word, every move- ment, which would seem to tend to the least fraud or corruption in an election so impor- tant. And yet, in view of the duty assigned us, we have nothing to do with mere matters of personal propriety, nor are we to determine whether all the plans, plots, and coun'erplots of these opposing factions were in all respects to be justified by a code of POWELL CLAYTON. 399 ethics ever so desirable, and yet perhaps too seldom practiced. We have to do with the practical question whether Senator Clayton was himself a party to such fraud and cor- ruption as invalidate his election or impeach his official character. In the whole mass of testimony there is but little to connect him with the various schemes which it is alleged were corrnpt in their inception and consummation, touching his election. Witnesses, it is true, did testify as to what others said, but that they spoke with the knowledge or concurrence of the party charged is left entirely without proof in many instances, and when the proof is supplied it relates to matters so entirely- im- material or foreign that it is scarcely worthy a moment's attention. One witness (McCon- nell) undertakes, we know, to bring all the mattere detailed by him, or many of them, home to the Senator. But we feel bound to say that in many respects his story is im- probable, and he stands before us in such an attitude that we are constrained to discredit much that he says. While before us he was almost a wreck from long-continued dissi- pation, and we were compelled to put him under treatment for several days before his testimony could be completed. Add to this that several witnesses, having the means of knowledge, testify unhesitatingly that his reputation for truth and veracity is bad, and it seems to us that no tribunal would be justified in condemning any one upon the mere recollection of such a witness, months after the transactions occurred. That which approximates nearest any improper action on the part of Senator Clayton, in this connection, relates to the steps taken to induce White to resign the ofSce of sec- retary of state. It will be seen that Clayton was governor and Johnson lieutenant- governor. When the former was first elected to the Senate, Johnson was still lieutenant- governor, and would, if the governor accepted the Senatorial position, succeed to the gubernatorial office. Clayton had pledged his friends, both before and after the meeting of the legislature, that he would not accept the position of Senator if Johnson was tq be left as governor. At the time proceedings were pending in the supreme court of the State to oust Johnson, but the proceedings failed, and thereupon Clayton declined the Senator- ship. He still desired to be Senator, and yet determined 1o maintain his pledge to his Mends. After much consultation among his friends and others, an arrangement was efiiected by which AVhite resigned. Johnsop was appointed by Clayton to his place as secretary of state, and then Hadley was made presiding officer of the senate, and, upon Clayton's election again to the Senate, which followed soon after the above resignations and appointments, he became governor. Months afterward White received, as we find, through Senator Clayton, $5,000 in money and $25,000 in railroad bonds. In the resignations and appointment themselves there was nothing wrong. There is no testimony that Clayton made use of improper means to bring them about. White, who is the only witness who seems to know much about it, says that he was a friend of Governor Clay ton — was anxious for the harmony of the party — had frequently expressed his readiness to do anything to bring about quiet and peace; that he had for months, because of the condition of his family, expressed his intention to resign ; that he had some business relations with the opposing faction, which was in such a situation that he knew he must suffer if by his resignation Johnson could be got out of the way; that he did thus sufier, and that this |5,000 was paid to indemnify him for this loss. He expressly denies that this money or his resignation was any part of any corrupt or other improper agreement or prior arrangement touching the Senatorial election. To this view of the transaction there is no direct opposing testimony. Who furnished the |5,000 and the bonds is not shown, except that they were deposited by Jackson E. Sickels to the credit of White, and the certificates of the deposit were sent to him by Senator Clayton. To conclude that' it was paid in pursuance of a corrupt agreement, under and by which Gov- ernor Clayton secured his election, we should have to proceed upon presumption in the face of positive statement; and this, too, without any evidence thatthe vote of any mem- ber of the legislature was influenced by it, at least to his advantage; and when, also, it had been demonstrated more than once that he had at the time a clear majority of both houses of the legislature. What he wanted was not votes, for he had them, but he wanted such a condition of things as that he could take the office and keep fiiith with his friends. By the retiring of White, Johnson would go to an office more desirable in tenure and emolument than the one he held, which was apparently sufficient to induce the step. The votes of the members of the legislature did not seem to have been involved in the movement, and White was content to see the matter arranged and to retire from a posi- tion that had become irksome to him. There was no necessary connection between the arrangement with White and the votes of members of the legislature. In itself there was nothing either criminal or corrupt. Certainly there is no law, State or national, punishing such an act. If not a part of a corrnpt agreement, by which votes were ob- tained, or intended to be secured, we cannot see how the arrangement can be made to affect his official character. Then, too, it must not be forgotten that the conference touching White's resignation was not with Clayton, nor ostonsibly on his account, but quite exclusively between Hadley and White,' and that Hadley was deeply inteiested oa 400 * SENATE ELECTION CASES. ' his own account in bringing aboiit White's resignation, for, in that event, the chances ■were, if indeed it was not certain, that he (Hadley) would become governor, and while the money passed through Ihehands of Clayton, in yiew of the other interests involved, we cannot say that others may not have contributed It; ami, in a matter so important and so vitally affectmg the character and official positionof a member of this body, we should not indulge in mere presumptions nor upon impression condemn him. Without giving our approval to the course pursued, we find nothing in it of such a corrupt or criminal nature as to vitiate the election, or to warrant a disturbance of his present official posi- tion. But one matter remains to be considered, and that relates to the alleged corrupt bar- gain by which Senator (then Governor) Clayton issued the certificate of election to Gen- eral Edwards, in consideration of receiving votes for his present position in the legislature of Arkansas. This charge, though the one in which this prosecution mainly originated, has less apparent support than either of the others. Much that has been heretofore said isappli- cablehere. The testimony, instead of showing thecorrupt bargain, abundantly establishes that the Senator (then governor), though acting from an incorrect view of the law and his duty, nevertheless was carrying out what he had at least fair reasons to believe the will of the peo{)le, as expressed by their votes. He had evidence tending to showfrauds. He had the solemn judgment of the hlghestcourt of his State, and the action of the law- making power touching the very point upon which he seemed to doubt; and he but followed such j udgment and action. To say that he acted corruptly or fraudulently under such circumstances, vpe would have to conclude that not only he had the fraudulent purpose, but that the other co-ordinate departments of the State government were cor- rupt, or governed by a like fraudulent intent. These charges, as applied to the court and the legislature at least, are too grave to be believed upon this record, or in any case where the evidence is not of the most conclusive and satisfactory character. This conclusion should not be based upon mere presumptions — upon the impression of witnesses — upon the understanding of parties influenced not a little by their political and personal feel- ings and animosities. And yet, divested of all extraneous matter, this is all there is of this claim. But, going one step further, the charge certainly fails from the fact that there is not fi particle of evidence that any member in either house of the legislature was induced to cast his vote in consideration of giving the certificate to Edwards. The claim is that he was to receive the votes of Democratic members in return for his action ; and yet he received but one vote that can by possibility be classed among the Democrats (and even his political status is left doubtful). This person was a witness before us, and he says positively that he voted for Clayton, but that there was no understanding or agreement that in consideration thereof Clayton was to issue the certificate to Edwards. And there is no evidence nor a single circumstance in the whole record in the least in conflict vrith his statement. There is therefore absolutely nothing in the least supporting this charge. We are therefore brought to the conclusion, alter a careful examination of all the facts, that there is nothing disclosed touching the charges made as found in the testi- mony of Wheeler and Whipple before the "joint select committee" impeaching tht official character and conduct ot Senator Clayton. We accordingly recommend the adop- tion of the following resolution: Eesolved, That the charges made and referred to the select committee for investigation affecting the official character and conduct of the Hon. Powell Clayton are not sustained, and that the committee be discharged from their further consideration. 'Bespectfully submitted. GEO. G. WEIGHT. L. M. MOERILL. VIEWS OF THE MINOEITY. Mr. Norwood submitted the following as the views of the minority: As the minority of the committee of three appointed by the Senate to investigate and report upon certain charges made against Senator Clayton, I have been unable to agree with the majority in the conclusions to which they have come, and I therefore beg to submit to the Senate the conclusions to which I have arrived after a careful review of all the facts. I regret that the majority of the committee did not see fit to lay before the Senate, embodied in their report in abstract form, more of the facts, as it would have enabled me to express my views in much shorter compass. I will, however, embrace none which I do not consider necessary to a correct understanding of the case as made. The general charge made against Senator Clayton is that he used corrupt means to secure his election to the United States Senate. This general charge embraces several specifications, to wit: 1st. That he corruptly used his executive power as governor of Arkansas in 1870 in P0W15LL CLAYTON. 40l « Uppointiug registrars of election to register votes for members of the general assembly, by whicli he was elected a United States Senator, who as his friends and in his interest would register with a view to elect candidates in favor of him for the Senate. 2d. That when primary meetings were being held in the counties to nominate candi- dates for that legislature he went about the State and, in person and by his friends and agents, manipulated these nominations in his own interest; and to effect this endxised his executive patronage to intimidate candidates opposed to his election to the Senate. 8d. Tiiat he either in person or through his Iriends and supporters for the Senate made a corrupt engagement, express or understood, by which his influence was to be given in favor of the election of General John Edwards, the Democratic candidate for Congress, in consideration of the support to him, of Edwards and his supporters for the Senate. 4th. That in pursuance of this understanding he issued to Edwards the certificate of election in theJace of a clear majority, according to the o£&cial election returns in his (the executive) office, in favor of Judge Boles, the Eepiiblican candidate opposing Ed- wards. 5th. That being under a pledge publicly and privately made to his political friends . that he, if elected United States Senator, would not leave the governorship in the hands " of Lieutenant-Governor J. M. Johnson, a Conservative, he corruptly instituted through his. friends and supporters a proceeding by quo warranto to depose Johnson from ofBce in order to clear the way to the Senate. 6th. That being elected Senator while the quo warranto was pending, when that was decided in liivor of Johnson, he resigned the Senatorship, and afterward secured his re- election by inducing E. J. T. White, secretary of state, in consideration of a large sum of money, to resign and inducing Johnson to take White's place. 7th. That he corruptly procured the votes of many members of the legislature in support ol himself lor the Senate by paying money; by appointments of themselves and 'friends to lucrative offices; by granting to them and their friends State aid to railroads in which they and their friends were interested. Beibre proceeding to state the testimony bearing upon and sustaining these specifica- tions, I will remark, in order that the Senate may appreciate the extent to which Sen- ator Clayton must have wielded his executive power, the energy he must have displayed, afid^the means he must have employed to make sure his election, and to increase the probability of the truth of witnesses who detail these means, that his contest for a seat in the Senate extended over a period of two years. This fact he states near the close of his own testimony when endeavoring to explain the statement made by H. L. McCon- nell, his former private secretary and political supporter, that Clayton told him the day after the second election "the fight had cost him (C.) in the neighborhood pf $20,000." His extreme desire to be a Senator likewise throws much light on many acts whose full force might not otherwise be realized. In a conversation held by Clayton, Lieutenant- Governor Johnson, Thomas M. Bowen, Joseph Brooks, and J. L ifodges, a short time before Clayton's second election, Brooks and Hodges both testify that Clayton stated he had long earnestly desired to be a Senator; that it was the dream of his life; that he was as ambitious as Csesar; and that had he his way he would sway the .scepter of universal empire. 1 would further state that by the laws of Arkansas under her new constitution the governor is clothed with unusual power and patronage. It is sufficient in this connec- tion to say that, with all the other power and patronage incident to the executive of each State,, he has the power of appointing judges, sheriffs, and justices of the peace. We will havefrequentoccasiontoremarkwith what vigor, if not rigor, such power, energized by such desire and ambition, was brought to bear in his Senatorial conteston friend and foe. The contest was^ exclusively Republican. Clayton had two opposing aspirants, Mc- Donald, former United States Senator, and a negro named White, both Republican. The legislative, executive, and judicial officers were all Republican. There was no hope for a Democrat to succeed. Of eighty-one members of the house in 1871 fifty-eight were Republiciins and twenty-three Democrats, as stated by Tankersly, the speaker. The oppressive disqualification of votes excluded a sufficient number of Democrats from the polls to throw the power (except in a few counties) into the hands of the Republican party. And such was and is the extraordinary power confided to registrars of election to receive or reject a voter's name — and to the board of review to retain or erase the names of voters "registered— that the control of a governor over an election by appointing his friends and supporters on those two boards was only limitedby his own integrity and that of his appointees. ■ In this contest the Republican party, being overwhelmingly strong, split by its very weight into two factions. They came to be known respectively by the names of ' ' Brindle- tails ' ' and ' ' Minstrels. ' ' Either claimed to be the elect. Governor Clay ton-4ed the lat- '• s E 26 402 SENATE ELECTlOif CASES. ter while Joseph Brooks was tlie acknowledged head of fhe former. Tlie hosilHy fell toward each other was very bitter. Around either leader were gathered many ardent defenders. And as exemplars of the characters who were from first to last the warm- and confidential fi-iends of Governor Clayton I beg to give what the evidence shows to be the morale of the most prominent of those whose acts and sayings during the Sena- torial struggle ate very important in determining the charges made against Senator Clay- ton. For from their confidential relations to him, from their constant conference v;ith him during and before and after the session of the legislature which elected him, from their interest in his success and dependence on him for office and other favors, we are enabled to decide to what extent their acts and sayings were the acts and sayings of- Governor Clayton. We learn also with what kind of men Governor Clayton used to accomplish his purposes. His chief adviser and constant attendant was Tijomas M. Bowen. There is scarcely a witness who testifies to an interview with Governor Clayton during that contest, extending through two and a half months, who does not speak of Bowen being present. He attended all the caucuses of Clayton's friends, was a regular lobbyist during the session for Governor Clayton, was most of his lime in the execu- tive office, and was present at several long, protracted interviews held at night between Governor Clayton and others of the opposition whom Governor C. was endeavoring to appease. Judge Bowen's motto, as testified to by Brooks and Hodges and undenied, was. "polities is but a game," and that the admission or non- admission of a contestant foi his .seat in the legislature is a mere question of party policy. This declaration of polit- ical ethics will be seen bearing its fruit in the subsequent conduct of its author. Another adviser and rx)nfideutial friend was John McClure, chief-justice of the su- preme court, the appointee of Governor Clayton. The testimony shows that he was frequently with Governor Clayton during his contest; that he was editor of a partisan gazette in Little Rock, advocating Governor Clayton's election to the Senate while occu- pying the supreme bench; that as such editor he accepted a large sum of money from the friends of a bill to silence his opposition to the bill; and that he during that time en- gaged, or oflFered to engage for a large sum, to lobby a hill through the legislature. These facts, except the last, he establishes by his ov, n testimony in this investigation. A third warm and zealous co-worker for Governor Clayton's election was Judge Ben- nett, also of the snprem,e court of Arkansas, and appointed by Governor Clayton. The testimony of W. R. Rogers throws much interesting light on his ch.aracter. He was a hotel-keeper in Illinois, failed, joined the Federal Army, went to Arkansas as a captain, resigned, and read law; was appointed about a month alter his admission to the bar by Governor Clayton as circuit-court judge, and was soon after (during the session of that legislature) appointed by Governor-Clayton to the supreme bench. His influence with Governor Clayton was supposed (says Kogere) to be greater than that of any man in the State, and henceduring that session of the legislature, while Bennett was on the supreme bench, he accepted from Rogers and others interested in a large railroad bill a proposition 10 use his influence with the board of railroad commissioners (composed of Governor Clay- ton, White, secretary of state, and one Thomas) to procure a grant of State aid to the road, and charged $70,000 ($1,000 per mile) for his influential service. His influence was effective. The aid was granted, the bonds were issued, and Bennett received from Mr. Dorsey (interested with Rogers) $35,000. During the Senatorial contest lie was very often in Governor Clayton's office and on the floor of the house. Another scarcely less conspicuous character iind e((ually zealous supporter of Gov- ernor Clayton for the Senate was Charles W. Tankersly. He is a Virginian: joined the Confederate army; deserted; joined the Federal Army; " misappropriated public prop- erty" (a horse); was dismissed the .service, and retired to private life in Philadelphia till the war closed. He then went to Ark.lnsas; enlisted under Governor Clayton in his contest for the Senate; was elected a member of the legislature; was nominated by Clayton's friends for speaker and elected. JMcLane, swears that Tankersly told him Governor Clayton sent for him (T.) before the legislature assembled and requested him to mu Ibrspeaker. It will be seen that in this contest lie was not a desei ter, but was true to his colois, and received, after Clayton's election, his reward in his appointment as superintendent of the penitentiary. Another and very prominent actor in these scenes, and a devoted friend of Governor Clayton, was O. A. Hadley. He was a senator in that general assembly. He was Gen- eral Clayton's agent to make the ofier to R. J. T. White to pay him a large sum of money to vacate his office, and thus remove an insurmountable obstacle to Clayton's election to the Senate, as I shall show hereafter. That being accomplished, Hadley was elected president of the senate {vice J. M. Johnson, who took White's place), and "while governor he continued to preside over the senate until certain bills (such as the levee and others) were passed. As this dual service as president of the .senate and governor was contemporaneous, and the first office was resigned just after these immense money bills were passed, it may not be amiss to state that the witness M'cLane swears that Chancy POWELt ClAVTON. 403 Stoddard, who paid McLane u large sum (Jo, 000) in bonds fb silence Ills newspaper and to get his services as a lobbyist tor the levee bill, and who, by his own testimony, stands convicted of bribing other members of the legislature to vote for the levee bill, told him " (McLane) that he (Stoddard) paid Hadley 120,000 in bonds for signing thelevee bill. This Hadley denies, while Stoddard says he does not know the iiauie of but one mem- ber, named Prigmore, who got the bonds, though he had reason for knowing that others shared them. As, however, the tact is not denied by any witness, ^ot 'even by Clayton or Hadley, thot Hadley bought off White, ii is not much of a strain on even human charity to believe that a man in ihe market to buy will not arouse a sleepmg conscience to stand guard against his being bought. There are other actors in this' drama whose moral figures would not compare unfavor- ably with those already but partially delineated; but S)s I have sketched the chielfe, I leave the others to. speak for themselves through their own and the mouths of other witnesses, and will now proceed to a summary statement of the facts. And in doing so, as a matter of convenience, and to economize time and space, after once introducing a party or witness by his full name, I will employ only his surname I will take the specifications^iu the order in which I have arranged them, and while I treat each separately for the purpose of grouping like facts, that they may be seen at one view, as will be seen hereafter, I resolve the seven specifications into three charges, all and each of which 1 think the te.stimony and evidence sustain. And, first, as to the corrupt appointment and use of registrars. It is not unreason- able to assume that Governor Clayton alter the canvass of over a year, according to his own statements, prior to the summer of 1870 (for in March, 1871, he stated that it had extended for two years), with his ambition to be a Senator, selected his own friends to register the electors of the general assembly, and of ofScers to be elected in November, 1870. This assumption is borne out by the testimony. In the county of Pulaski he appointed James V. Fitch and E. H. Chamberlain regis- trars. There is much evidence pro and con as to the fraudulent registration made by that board, and witnout stopping to settle the point of veracity, it is sufficient to say that without any prior announcement of his intention, Chamberlain,' who was one of the most zealous of the partisans of Clayton, and worked from first to last for his-election, and who was introduced as Clayton's witness in this investigation, just after registration closed, and within five days of election, on the 8th of November, announced himself as a candidate on the Clayton ticket lor the legislature; and while by the returns, a^ set forth in the testimony of the witness J. L. Hodges, lie (Chamberlain) received but - 1,892 votes from the counties of Pulaski and White, constituting his district, out of a vote of about 5,000, he was returned by the secretary of state to the lower house as one of the members-elect, and obtained his seat. And I'rom that time to the end of the dis- graceful struggle, carried on in and out of the legislature for near two and a half months, for the election of Llnited States Senator, he was not only the supporter but the con- fidential agent and adviser of Governor Clayton. James V. Fitch was rewarded by an ' executive appointment to the office of circuit clerk of Pulaski County and clerk of the crimimal court, which court was crejited at that session of the legislature. The witness A. A. C. Rogers says that in Columbia County Clayton appointed a boy from Illinois, named Ryan, registrar, andthatinHot Springs County he' api5ointed-Z. L. Cotton as registrar, who, it was generally understood, li\ ed in the county above and out of the district, though by the law of Arkansas the governor is required to appoint a resident of thfe county, who has resided in the county six months before the registrar tion. The witness Met. L. Jones states that Clayton appointed a mau named George A. Wilkins registrar in Columbia County, and that Wilkius was afterwards appointed jus- tice of the peace. A justice of the peace in Arkansas has jurisdiction up to IpoUO, and the fees of office are high. That W. H. Atkins, registrar for Union County, was also afterwards apppointed a justice of the peace. The witness Jones states that Cotton was a resident of Mount Ida, Montgomery County, while acting as registrar in Hot Springs County, and was afterward appointed clerk of the Montgomery County court. As evidence of the sympathy existing between these registrars and Governur Clay ton, I refer to an interview detailed by the witness Met. L. Jones, between himself. Gover- nor Clayton, and Judge Bearden. He says such were the frauds being committed by 'the registrars in Columbia and Union Counties, that many citizens ol' those two counties met in convention and appointed Jones and Kearden a committee to wait upon the gov- ernor and make complaint and petition for redress. He stated the case; told Governor Clayton that he had affidavits of fifteen substantial men in his county to the facts. Gov- ernor Clayton said, at first, that was ex parte. Witness offered to put them in proper -form; Governor Claytonthen said it was too late to investigate (though the witness states the intervievy was fifteen days before the election, and the law of Arkansas is thai 404 SENATE ELECTION CASES. registration closes Only ten days before the election). Jones then asked him to teindve the registrar. Claytonrepliedhedidnothavethepower; to which Jones rejoined he had already removed some. Clayton said he had, but that he thought he had transcended his authority, and that he would refer the matter to the courts. When asked if he would not interfere then, he said he would after the election. Jones said ^hen he would apply to the couris, and Clayton told him he would not submit to that interference by the courts. before the election; and if he (Jones) attempted to arrest the registrars before the election, he would treat the act as insurrectionary, and would employ Jorce, i neces- sary. Met. L. Jones v. as an intelligent man and a lawyer. In this connection I will give the first and second sections of the act of July 15, 1868, regulating registration of electors in Arkansas, page 52, statutes of 1868, and will state that there is nothing further in the whole act, or any other law of Arkansas, brought to the notice of the committee, which abridges the power therein conferred on the gov- ernor. "Section 1. That on or before the 1st day of August, 1868, and every two years thereafter, the governor shall, with the advice and consent of the senate, appoint three loyal, competent, and discreet citizens in each county, who shall have residi-d at least six months in the eounty next preceding their appointment. Said persons shall be styled and called board of registration, one of whom shall be designated by the governor as president of said board: Provided, That in case no such person can be found in each county within the State, then and in that case they shall be appointed Jrom the county most convenient thereto, each of whom shall serve two years, unless removed as pro- vided hereinafter: And pi-ovided further, That the governor, in lieu of one of the citizens to be appointed as above provided lor in this section, may deSigna te a justice of the peace, notary public, or constable as one of the members of the board of registration, who shall in every such case be designated as the president of said board ; and every j ustice of the peace, notary public, or constable that may be designated by the governor as a member of said board for any county in this State shall, in addition to the duties now imposed upon^him by law, discharge the duties of president of such board of registra- tion according to the provisions of this act. ''Sec. 2. The governor shall fill any vacancy occurring in any of the appointments made by him, and may in his discretion reipove any one so appointed by him for incom- petency or other sufficient cause. The secretary of state shall cause notice by certificate to be given to each of the persons, and shall also transmit to the clerk, of the county court of each county the names of the persons so appointed as board of registration." With this act before him, and the fact brought to his notice that he had already re- moved some of the registrars-, he stated to Jones as a reason for not desiring to interfere with that alleged fraudulent registration in Columbia and Union Counties that he did not have the power to remove them. His first answer was it was too late; second, I have not the power; third, go to the courts for redress; and, fourth, you shall not resort to the courts until after the election, and if you do I will consider yov( an insurrection- ist and put you down with a military Ibrce. To show the discretion and power of these registrars, as well as to illustrate the benefi- cence of the then existing government in Arkansasj'and the freedom of opinion thereby tolerated at that time and now, so far as I am advised, I will quote the eleventh section of the' act above referred to: "Sec. 11. That no person shall be registered who during the late rebellion took the oath of allegiance to the United States, or gave bond of loyalty or for good behavior, unless he shall show by satisfactory evidence that he has ever kept this said oath or bond inviolate, or that he has openly .advocated or voted for the reconstruction measures of Congress, or voted for the constitution at the civil, polls at the constitutional election - of 1868." I win remark this act was passed during Governor Clayton's term of office and was of course approved by him. Referring to the words in the last section quoted and itali- cized by me, I challenge all Christendom to produce its parallel for anti-republicanism and tyranny. It is very easy to see how, vrith such harsh and^ at the same time mobile power lodged in the discretion of the instruments and favorites of a governor acting in the capacity of registrars, they could manipulate the election of a legislature to secure an overwhelm- ing majority. As evidence as to how Governor Clayton was disposed to use that power T refer to the statements of the witness A. A. C. Eogers. Rogers was a candidate for Congress against O. P. Snyder at that election. In August, 1870, before Rogers entered the race, know- ing, as he says, how registration had been conducted in the former election for Congress in 1868, he called upon Governor Clayton to know if the people of Arkansas would have a fair election. He says Clayton smiled and said that depended very much on circum- stances. What those circnmstancesj were will appear hereafter. Rogers states that POWELL CLAYTON. 405 about two weeks before the ele'ction he complained to Governor Clayton of the abuses in registration in his district, told him that out of about 2,200 voters in Union County there had been registered but about 700 to 800, and tlj^t in Chicot County tl^ey were registeringabout 1,200 railroad hands, non-residents, who were there employed by one Jackson E. Sicldes, a railroad contractor. Rogers states, as does Sickles also, that Sickles was a personal and political friend of Governor Clayton and desired him to be Senator. Governor Clayton said to ine, "I have no control over my registrars and, I cannot do anything with it. ' ' Eogers replied, ' ' Governor Clayton, you have attempted to control ; in two or three instances you have removed registrars and appointed others, and now you tell me you cannot do it." To which Clayton replied, "Damn it, I do not know but what I did wrong, but the damned rebels there ought not to vote anyhow." Rogers replied, "Governor Clayton, you are not the constitution of the State. It is your busi- ness to enforce the law if it dooms every man in the State, and when you assume to be the constitution you as-sume too much." Eogers called his attention to two hundred sworn certificates of persons debarred the right to register. Clayton replied, "I have not time to correct it now. ' ' Rogers says this was about nineteen days before the election. Much more was said with which I will not encumber my remarks, but which illustrates the manner in which Governor Clayton conducted that registration. Governor Clayton ad- mits the conversation and does not deny the language, but explains by saying that he referred to Ku-Klux outrages existing at the former election, in 1868, and that he said to Rogers that if they were to be repeated he would control the registration to prevent them, or words to that effect. The Senate will be enabled to judge between the two statements when this conversation is given more in detail. Rogers states that Clayton removed Judge Alexander, in Ouchita County, alter registration was complete, and ap- pointed a man named Thompson registrar, who lost the registration book and ran away ; that he removed Hicks, a registrar in Hempstead County, and appointed Beldin, the uncle or father of D. P. Beldin, senator from Hbt Springs County, who was one of Clay- ton's strongest friends during his Senatorial contest. The second specification is as to how the nominations for members of the legislature were manipulated by Governor Clayton and his friends in his own interest. On .this point I will be brief, contenting myself with one transaction by w'ay of illustration. The witness Judge Story testifies that he was a candidate for the legislature from Co- lumbia County; that a man named Archer, a supporter of Clayton, came into the county and said that Governor Clayton did not desire him to go to the legislature and asked him if he iiitended to persist in his candidacy; he replied that he did. Archer then produced from his pocket an order or proclamation issued by Governor Clayton and threatened Story that if he did not desist and allow Clayton's Iriends to be elected that the public printing, which Story, a Republican, was then doing in the Magnolia Flower (a gazette of which he was editor), would be taken Irom him and given to another paper. He was then doing the public printing for two counties. Union and Columbia. The public printing was afterward given to the South Arkansas Journal, priiited at Camden, Ouachita County, forty miles off, not more than fifteen copies of which the witness states were taken in his county. This patronage consisted of publication of notices from the probate courts, executors' and administrators' sales. &c., and for the two coun- ties was worth to Story $3,000 per year. This printing was taken away alter the dele- gation from thattjounty reached the legislature and persistently opposed the election of Governor Clayton. The witness asked Governor Clayton why it was done. He ga^ no reason, but referred to the course the delegation had taken toward him. Several other witnesses besides Story also testified that while the primary meetings were being held for nominations throughout the State, Clayton was going about the State providing for the nomination of men favorable to his election. The witness J. T. "White testifies that after the nomination was made in his county, Clayton appeared there and insisted upon a renomination, which was carried out and the ticket elected. The witness, who was nominated the first time, was retained on the ticket as a friend of Governor Clayton. The third and fourth specification charges a corrupt agreement with the Democrats, and particularly with General John Edwards, Democratic candidate for Congress, in pur-, suance of which the Democrats were to support Governor Clayton for the Senate, and Governor Clayton was to aid in the election of Edwards, and to give him the certificate of election. The inception of this transaction occurred in October, 1869, as testified by the witness A. A. C. Rogers. He says that at a meeting of the most prominent Demo- crats in Little Rock, assembled to consider the political situation of the State, Judge T. M. Bowen appeared with a written proposition from Governor Clayton to form a combi- nation with the Democrats for their support. He said he was right from Governor Clay- ton, .who approved it, and that he was there in Clayton's interest. His proposition was that Governor Clayton would control the election so as to secure a legislature favorable for him for the Senate, and that Clayton, in consideration of the Democratic support, would recommend to the legislature such measures as would relieve the people from the 406 SENATJi ELECTION CASES^ ■ disfranchisements of the constitution; that in the counties where Clayton's friends had the majority he' was to name the candidates; in the counties where the Democrats were so greatly in the nujority that be could not control tlleni, they were to name the candi- dates. There was no Republican present except Judge Bowen. Bowen said that the witness (Rogers} was to acquiesce in this arrangement. Another meeting was held- at Mr. Garland'soffice that night, and a consultation ensued. Kogers dissented to Clayton's proposition, and withdrew I'rom the meeting. Witness met Governor Clayton the next day at the fair grounds. Clayton referred to the meeting the night before; said that the arrangement proposed was "about the best thing that could be done." Bowen stiittd distinctly, in answer to an inquiry propounded by A. H. Garland, one of the Democrats present, that this proposition and the terms upon which it was made came directly Irom Governor Clayton. The proposition shows yery clearly two things: first, his anxiety lo combine with the Democrats for his election, and, secondly, that he was perfectly will- ing to use the executive power in manipulating the election of members ol' the logisiatuie to the same end. It also reflects much light upon the two charges made against hin), that he did conduct the registration for that election unlawlnlly, and, therelbre, cor- ruptly, if to secure his election; and that he agreed to issue the certificate of election lo Edwards, in consideration of the support of Democrats. As Governor Clayton required that the witness Kogers should accede to this proposi- tion, and as ne dissented, there is no evidence befiwe the committee that the combination then proposed was ever carried out in that Ibrm; that is to say, there is no evidence that the Democrats allowed him to name their candidates. But as to whether his pur- pose was carried out as Tevcaled in that proposition will be se6n when we come to con- sider his conduct and motives in issuing the certificate to Geueral Edwards. There are other similar facts disclosed in the evidence, but I will now proceed to col- late the facts bearing upon the charge of issuing the certificate of election to General Edwards. There were two Republican conventions held at Fort" Smith to nominate candidates for Congress. Judge Thomas Boles was nominated as the regular Republican candidate: E. J. Searle was nominated b.y the other. Edwards states that he ran as an indepenrl- ent candidate — a quasi-Eepublican — but supported by the Democrats and Conservatives. In a short time Searle withdrew, leaving Boles and Edwards to run. the race. The ma/-- jority of this committee, in their report, a^surae as an uncontroverttd tact that Governor Clapton supported Boles, the regular Kepublica;!; but there is hardly any tact in the whole investigation about which witnesses differed more, as 1 will now proceed to show, and if the evidence does not establish the fact that Clayton was supporting .Edwards, it undoubtedly shows that if supporting Boles, Edwards was the subject of much well- plied coquetry; tor Edwards and his friends were certainly under the impression that Edwards had the executive favor. The witness H.'L. McConneJl swears in terms that Governor Clayton supported Edwards. And just here, as an attempt was made, in con- sequence of the strength of McConnell's testimony against Clayton on this and other points, to impeach his veracity, and as a majority of the .committee in arriving at their conclusion have entirely ignored his testimony, I will state the reasons why I give credence to his statements. He went to Little Kock in 1869, with a letter of introduction to Governor Clayton, going liom Lia-.cuworth, Kaus., wheie Guvtmc.r Clayton -formerly resided. Being an editor, and evidently a very intelligent man, he was engaged by Gov- ernor Chiyttai as his private secietary; He commenced advocating, in a public gazette, Governor Clayton's election to the Senate, and continued in both capacities until Go\- ernor Clayton's election. These facts are not denied by Clayton, himself. They were certainly on the most intimate terms. Sustaining those relations to Governor Clayton for two years, he certainly had full opportunty to ascertain during that time whether McConnell was a man of veracity; for let it he borne in mind that his testimony is not discredited by contradiction, but, on the other hand, is corroborated in many points by several witnesses. The attempt to discredit him was made by introducing two or three parties, unknown to the committee, who swear that McConnell's reputation while in Leavenworth,, and afterward in Little Rock, for veracity was bad. That he was the holder of the political secrets of Governor Clayton is fully sustained by Clayton's own ' testimony, for, some time after the-SenatoriaL election, and in 1H71, two witnesses, Mr. and Mis. Parish, whose voluntary afftdavits were admitted in evidence by consent, .swear that Governor Clayton during McConnell's ahsfeuoe from his room, which was in Parish's dwelling, entered McConnell's room, opened his trunk, ransacked it, and examined a larjie number of letters therein, and took away a large bundle of papers. The witness says they were letters which show Governor Clayton's relations to Edwards. Clayton says they were letters which he had given to McCimuell to answer, and which McCon- nell had not answered. McConnell. who says that he occasionally — two or three times a year— gets on a drunken spree, was at that time drunk, and had been absent from his room for a day or two. Their relatioris were certainly extremely confldenf.al, not only. i'OWELL CLAYTON. 407 from the testimony of other witnesses, but liom the admissiou's ol' Coveinor Clayton himself; besides as to several material statements Governor Clayton coiTobdrates the testimony of McConnell. As, for instance, McConnell testifies that Clayton ofleied Grady, a member of the legislature, the sheriiTally of his (Crawford) lountv lo vote to impeach Lieutenant-Governor Johnson, and about thatClayton savshe has an imiistinct recollection of McConnell's speaking to him about the sheriff's office of the county, but does not reittember that he made any promise or pledge. Again, McConnell sajs that Clayton told him his election had cost him ^••20,m0. Clayt«n admits he told him that it cost him a great deal of money, and explains in what way he spent it; and it is most noteworthy in determining the credence to be given to McConnell, that Governor Clayton, while testifying in his own behalf, and being repre- sented by two counsel supposed to be learned in the law, and to undeistand how to con- duct a defense, to wit, John McClure, chief justice of the supreme court of Arlsaiisaf, and Thomas M. Bowen, ex-justice of the same liench (McClurc appointed by Clayton, no doubt on account of his judicial learning), did not in all of his testimony refer, by denial, to any of McConnell's statements, which are numerous and very damaging if true, except the two instances that I have referred to above. And now to resume the evidence bearing upon Kdwards's case. McConnell, who by editorials and correspondence was advocating Clayton's electiou, and was on such terms of intimacy with Clayton, publicly and privately opposed Boles and advocated Edwards's election. He produced li\e letters written to him by Edwards during the campaign, the first dated as early as the 19th of January, 1870, in which he says, "We are bound to sweep the State and elect Clayton to thc'Senate; most of the Democrats will vote for us. 1 am glad you are with us for Clayton." The second, dated November 25, 1870, says: " If we can succeed in getting the returns of tfie legal polls sent up, I am satisfied (he governor wiil disregard the bogus returns and give me the certificate. " In another letter, written belbre Clayton's first election, Edwards says; " I have succeeded admirably in squelching out several contests in other counties, urged on by the ' Brindle-tails ' iu order to compromise the contest fiom Pulaski." '■' •■ * "If Clayton should count the five townships and gixe Boles the certificate, a howl would be raised by Conservatives and IJepublicans, that would let in Brooks and Hodges (two Republican candidates for the legislature, who were contesting tor their seats, and op- posed to Clayton, one of them. Brooks, a vers- influential man), and keep out the others who had publicly pledged to his support." -The fourth letter says: " Clayton has the inside track: can be elected, and above all will receive the support of all the Conserva- tives, but if he should fail to give me the certificate, such a howl as will go up you never did hear." In the fifth letter, dated February 18, 1871, and which was written after Clayton's first election (January, 1 871 ), and before Edwards got his certificate (Feb- ruary 20, 1871). Edwards says: "From the vote ousting the great high priest, Joe(mean7 ing Joseph Brooks, the senator, who had been tumed out of the senate by Clayton's sup- porters), I shall be under more obligations to the governor for the certificate than anyone else, and I think I can, in turn, render him cs.scutial service, as they intend making war on him on his taking his seat." I call attention to the letter dated November 25, 1870, in order to state in this connection that Edwards swears that he went from Fort Smith, his home, to Little Rock, within ten or fifteen days after the election, which was held on the 8th of November, to .see Governor Clayton about his certificate; that Clayton then and there said that he (Clayton) would be go\emed in issuing the certificate by the action of the courts and legislature. This statement shows that Clayton already had the re- turns before him, and knew the result of the returns. Boles swears that he first called oh Governor Clayton to see about the certificate, after the expiration of thirty days from the election, which must have been alter the Sth of December, and that Cla.vton then told him that he had not examined the returns because he had not been well; thatClay- ton said nothing about the result of the election as ^howu by the returns, but said that Boles might go to Washington; he (Clayton) guessed the certificMc would be all right. Boles testifias that he was the regular liepublican nominee for Congress; that Searlc was the nominee of the other faction; that Clayton considered him (Boles) opposed' to Clayton's election to the Senate. Edwards, witness for Clayton, testifies that he was an independent Republican candi- date; that Clayton favored Boles's election; that he (Edwards) was in favor of Clayton for the Senate. The returns, it is admitted on both sides, in the executive office showed that Boles was electefd over Edwards by a large majority; but Clayton refused to give the certificate to Boles. Thelawof Arkansasrequiringthegovernortoissuethecertificateis as follows: " It shall be the duty of the secretary of state, in the presence of the governor, within thirty days after the time herein allowed to make returns of elections to the clerks of the county courts (i. c, five days after the election), or sooner if all the returns shall have been received, to cast up and arrange the votes from the several counties, or such of 408 SENATE ELECTION CASES. tliem as have made returns for such persons voted for as members of Congress, and the governor shall immediately thereafter issue his proclamation declaring the persons having ,tbe highest number of votes to be duly elected to represent the State in the House of Kepresentatives of the Congress of the United States, and shall grant a certificate thereof under the seal of the State to the person so elected." — (Statutes of Arkansas, 1868, page 325) section 50.) Governor Clayton refused to is.«iue his proclamation declaring Boles elected, and never did issue to him the certificate of election. His only excuse for refusing to comply with the law. above quoted is that a few days after the election certified copies of affidavits, accompanied by a petition purporting to be signed by several candidates for the legisla- ture in Pulaski County, asking him not to count the returns from that county, on account of alleged frauds, were laid before him. These certified copies are signed by Stoddard (brother of Channcey Stoddard, who bribed Prigmore) and other members of the legis- lature. When Claj'ton was on the stand he could not recognize the handwriting of but two of these petitioners, though he knew them all well, and these two are Howard (a Democrat) and Chamberlaio (a Conservative, who wa? his political friend and voted for him for-Senator). Why certified copies of affidavits were used no^itnes's explains. Why only the signatures of Howard and Chamberlain are proved (and that by Clayton only) to be genuinethecommittee were not informed. But here conies in an extraordinary fact which may be, and in; my opinion is, the key to the mystery. Noone ever saw those affida- vits and petition until this investigation commenced, though Clayton says he received them the r7th of November, 1870, so far as the testimony shows, except Clayton and Chamberlain. R. J.T.White, secretary of state, swears he never saw them. Barton, Clay- ton's private secretary and brother-in-law, and his witness, makes no reference to the existence of these affidavits and the petition. And when Clayton was asked how these papers came to be in his possession now, his significant reply was that when he vacated the executive chair he retained them, " deeming they would probably be of some im- portance in the future." Boles also swears that in his interview with Clayton, thirty days after the election (about 8th December), when Clayton told him to "goon to Wash- _ ington; he [Clayton] guessed the certificate would be all right," Clayton did not even refer to the existence of these affidavits and this petition. Another part of this history necessary to be known is this: Chamberlain and Howard were beaten by the returns first made from Pulaski County. The clerk of the county, McDiarmid, had received two sets of poll- lists; had rejected one and certified the other and sent it to the secretary of state. The one certified defeated Edwards and elected - Boles — defeated Chamberlain, Howard, Gantt, Mitchell, and others, and elected J. L, Hodges and others. It was all-important, therefore, in order to justify issuing the certificate to Edwards, that the rejected polls in Pulaski should be counted, and the polls certified to the secre- tary of state should be rejected. When Edwards called on Governor Clayton, about ten or fifteen days after the election, they and Chamberlain held a conference, and it was then and there agreed that steps should be taken to get the returns excluded by Mc- Diarmid sent up. Chamberlain sued out from the supreme court, then consisting of McClure, Bowen, and Wilshire (another adherent and appointee of Clayton), a manda- mus to this clerk. A case was made and the court decided that the excluded polls were the legal votes. ' But still the certificate was not issued, though this decision was ren- dered two days before the legislature met. The election for Senator was yet to take place, and the support of Edwards and the Democrats was to be given. The election occurred on the 11th of January, 1871, and all the Democrats except five voted for Clay- ton. He accepted the position as Senator and still would not issue the cettificate. Two of the candidates for the house in Pulaski County, Gantt and Mitchell, had proposed to Clayton, Edwards, and their friends that they must desist from this coiftest lor seats if Qlayton would issue tlje certificate to Edwards. When Clayton was elected on January 11, as above stated, Gantt (who was authorized by Mitchell to act for him) complained because Edwards was not commissioned. On January 27 Gantt addressed the following letter to the house; To the honorable the house of representatives of the State of Arkansas : I learn from the published proceedings of the house of representatives in the city papers of this date that it was announced in your honorable body on yesterday that 1 had retired from any contest for a seat therein, and that the protest and papers presented on the first day of your session by Hon. L. B. Mitchell and myself to abandon our con- test on condition that a certificate of election as member of Congress was issued to Gen- eral John Edwards. I certainly understood this to be fully assented to, and in compli- ance with that agreement prepared a formal abandonment of the contest, in writirig, to be used only after such certificate should have been issued to General Edwards. Believing that General Edwards had been legally elected a member of Congress, and POWELL CLAYTON. 409 that he could render efficient service in that capacity, but fearing that the issuance of his certiflcsite of election -was likely to be delayed, if issued at a,ll, and desiring that it should be issued, we consented to surrender our individual rights in the premises for what we considered to be the public good. Hon. L. B. Mitchell and I are able to show, by the most indubitable evidence, that we were legally elected representatives from the. tenth district, and respectfully ask that we be afforded an opportunity of doing so; that the papers connected with our contest be rereferred to the committee on elections, and that we may have a fair and impartial hearing. E. S. GANTT. - Before the date of Gantt's letter the court, had decided that the excluded polls were the legal -votes in Pulaski County, which gave Edwards amajority of 50, and the legislature, by joint committee, had decided the same question in the same way. This result, let it be remembered, was all Clayton said he desired to di'cide to whom he would issue the certificate. Hence Gantt complained, because the agreement had been carried out by him and the other Democrats and Clayton had not issued the certificate to Edwards. I will now state some facts which furnish an explanation of this delay or refusal. The fact is sworn to by many wi'messes on both sides; indeed, it is admitted by Clayton that during the canvass ior the election lor the legislature and Congressmen be pledged himself to his political friends that he would not if elected Senator accept the position and leave Lieutenant Governor Johnson in office to become governor. This pledge was on him at his first election in January. He, as is alleged, had a proceeding g«o warranto instituted against Johnson to turn him out of office on the sole grotind that Johnson, who was elected with Clayton in the spring of 1868, and had been in office lor over two years, and presiding over the senate by virtue of his office, had not taken the oath of office as lieutenant-governor within the time prescribed by law. This was more than even the supreme court of Arkansas, constituted; as I have shown it was, could stand. The quo warranto failed, and Clayton kept his pledge by resigning the Senatorship. The Democrats and Conservatives tlien became furious. Gantt sent in his letter to the house. Articles of impeachment were preferred against Clayton in the house, and fourteen of' the friends of Clayton, to prevent their presentation to the senate, deserted the senate and "took to the brush." The certificate was issued to Edwards, and Gantt and Mitchell gave up the contest for their seats. PYom this time to the date of Clayton's second election, on the 15th March, 1871, two other Aeans were adopted- to secure his election. They constitute the foundation on which the sixth and seventh specifications rest. I will now proceed with the evidence bearing on the Clayton-Edwards agreement.' Boles testifies that Clayton was unfriendly to his nomination; thatduring the canvass Clayton aslied for his support for the Senate, and he told Clayton that he must stand neutral between him and McDonald. Edwards, witness for Clayton, as has already been shown by his letters to McConnell, was supporting Clayton. He says in substance, "Clayton, Chamberlain, and I agreed on the investigation which was to change the result in Pulaski County, by which I would get a majority. Chamberlain agreed to take the matter in hand. Chamberlain may have told me that he was moving in the investigation at the instance of Governor Clay- ton. Clayton and I agreed on the matter as any two would agree to any proposition. I always saw Clayton privately. Chamberlain told me that he had talked with Clayton and that Clayton desired the investigation to go on— ;iust such an investigation as afterward took place. [Investigation here referred to was the one alterward conducted by a joint committee of both houses, Samuel Mallory, senator, chairman, for the double purpose- first, to furnish a ground for issuing a certificate to Edwards, and, secondly, to exclude certain candidates from Pulaski and other counties who were opposed to Clayton's elec- tion, and who by the returns then in the executive office were elected.] Chamberlain always said he desired Clayton's election. I left home on my way to Washington about the 23d of February; was informed by letter before leaving honie that I would get my certificate. [Certificate was issued the 20th February.] I heard a rumor of this bar- gain between Clayton and myself before the certificate was issued ; denied it privately but not publicly. Gantt told me that if the investigation (by Mallory committee) was made I would go to Congress and he and Mitchell would in that case withdraw from their contest. The polls which McDiarmid, the clerk of Pulaski County, had excluded were counted by the Mallory committee, and those he returned were rejected; tuis gave me 50 majority'. The Mallory committee reported after Claytoa's first election. No one ever approached me on the subject of a bargain further than as to the withdrawal of Gantt and Mitchell. I probably wrote letters urging Clayton's election. My first in- terview with Governor Clayton" about my certificate was ten or fifteen days after the election. He said in that interview he would be governed by the, action of the courts 410 SENATE ELECTION CASES.' and the legislature. Democrats and Clayton Kepulilicaas told me tjie same thing. Both ~ Clayton and White, secretary of state, told me the election, returns were -late cpmiqg in." McConnell says: "Governor Clayton supported Edwards in the election. He told me he would issue the-certificate to Edwards. Neal. Democrat, told me that there were great complaints among the Democrats that Clayton had not given the certificate to Edwards. I told Clayton of the complaint; there was at that time acoalitiou hetween the Demo- crats and Brindle-tails to unseat Clayton men in the legislature. I told him Whitesides, elected sherilf of Crawford County, had not received his commission, and suggested that he commission Whitesides to conciliate the Democrats. Clayton assented, and informed me that he would issue the certificate to Edwards. He said, however, that commission- ing Whitesides would r^ise a howl among the ultra- Republicans. I saw Gantt on the morning of Clayton's second election ; told him Clayton had fulfilled his pledge by issu- ing the certificate to Edwards and that he (Gantt) ought to" do something tor him i Gantt said he would go out and do what he could. Judge Walker, of Washington County, sent word by Edwards to Clayton that if he treated Edwards right Walker would urge his representatives, Owen and Caraloff and others, to vote for him. " While the ipapeachment was pending against Clayton, Edwards told me he could not do much to relieve him unless.he (Edwards) got his certificate, and asked me to tell Clayton that Edwards says that Clayton hadpromised to give him the certificate and was only waiting for a report from the Mallory committee; that the report had been made and the decision of the court in the mandamus case rendered, and that he wanted his certificate. I told Clayton, and the certificate was given the same or the next day. The impeachment was on the 16th, and the certificate was issued on the 20th of Feb- ruary. I was acting as the medium of communication between Clayton and various parties." Chamberlain, witness for Clayton, says: "Gantt placed the matter of his resignation to assist Edwards in my hands, and said that he represented Mitchell also. By changing the returns from Pulaski County, Edwards would be seated. I proposed this to Edwards, and, with his approval, saw Governor Clayton about it; when the legislature met a reso- lution was introduced to raise a committee. Judge Bowen, Tankersley, and Judge Bennett were present whenrl saw Clayton. Clayton told me to hurry lip the mandamus case, and to get the other returns from Pulaski County. I was a supporter of Clayton, and opposed Boles. Edwards was urgent for the investigation. Judge Bowen furnished the names of the committee to me, and I handed thetn to Tankersley, the speaker. 'Tankersley left off C. C. "Waters and put on Mr. Ham, because Waters was dilatory about thejnatter. Judge Bennett, then circuit judge, vvent into the house and urged Waters to act. Soon after Bennett was appointed supreme court judge. Judge Watkins brought a paper to me from Gantt, proposing to decline a contest for his and Mitchell's seats if Clayton would issue a certificate to Edwards. Bennett took the paper to Clayton, re- turned, and said Clayton would not sign it. Gantt sent in a letter to the house stating he would claim his seat unless the agreement to issue, the certificate to Edwards was carried ont. The certificate was issued, and Gantt and Mitchell withdrew. Saw paper from Gantt in Judge Watkins's hands containing his proposition about Edwards, and stiite'ho further swear they did vote for him), and counting those with whoru he b.ir^aiaed to give thsm Uxen^tive oiflcas for their vote.1, 000, or so much thereof as may be necessary." The Senate proceeded to consider the said resolution as in Committee of the Whole; and no amendment being made, it was reported to the Senate. Ordered, That it be engrossed and read the third time. The said resolution was read the third time, by unanimous consent. Resolved, That it pass. Thuesday, February 27, 1873. Mr. Morrill, of Maine, from the select committee to whom was referred the commu- nication of the House of Representatives of the 4th instant, in relation to certain mat-' ter affecting members of the Senate, together with a copy of the evidence accompanying the same, submitted a report (No.. 519) accompanied by the following resolution: "Resolved, That Janies W. Patterson be, and he is hereby, expelled from his seat as a member of the Senate." , Saturday, March 1, 1873. [A debate on the question of taking up the report of the committee for consideration is found on pages 2068, 2069 of the Congressional Globe, part 3, 3d sess. 42d Cong.] Monday, March 3, 1873. [A debate on the question of taking up the report of the committee fda- consideration is 3und on pages 2184, 2185 of the <:!ongressional Globe, part 3, 3d sess. 42d Cong.] [Special session of the Senate, March, 1873.] Friday, March 14, 1873. Mr. Anthony submitted the following resolution for consideration; which was ordered to be printed: ■ "Whereas at the last session of the Senate a resolution was reported from the select committee on evidence affecting certain members of the Senate, ' that James W. Patter- son be, and he is hereby, expelled from his seat as a member of the Senate' ; and ' ' Whereas it was manifestly impossible to consider this resolution at that session with- out serious detriment to the public business; and ' ' Whereas it is very questionable if it be competent for the Senate to consider the same after Mr. Patterson has ceased to be a member of the body: Therefore, "Resolved, That the failure of the Senate to take the resolution into consideration is ■ not to be interpreted as evidence of the approval or disapproval of the same. ' ' Resolved, further. That Mr. Patterson have leave to make a statement, which shall be entered upon the Journal of the Seriate and published in the Congressional Record." * Tuesday, March 25, 1873. On motion by Mr. Anthony, the Senate proceeded to the consideration of the resolution submitted by him on the 14th instant, declaring that the failure of the Senate to consider the resolution for the expulsion of J. W. Patterson from the Senate shall not be inter- JAMES W. PATTERSON. 425 preted as evidence of the approval or disapproval thereof; and granting leave to Mr. Patterson to make a statement for publication in the Congressional Record; and, Pending debate, On motion by Mr. Chandler, the Senate proceeded to the consideration of executive business. [The debate is found on pages 193-197 of the Congressional Record, vol. i.] Wednesday, March 26, 1873. On motion by Mr. Anthony, the Senate resumed the consideration of the resolution submitted by him on the 1.4th instant, declaring that the failure of the Senate to con- sider the resolution for the expulsion of J. W. Patterson from the Senate shall not be interpreted as evidence of the approval or disapproval thereof, and granting leave to Mr. Patterson to make a statement for publication in the Congressional Record; and The resolution having been amended on the motion of Mr. Morrill, of Maine, it was agreed to, as follows: ' ' Whereas at the last session of the Senate a resolution was reported from the select com- mittee on evidence afifecting certain members of the Senate, ' that James W. Patterson be, and he is Hereby, expelled from his seat as a member of the Senate ' ; and ' ' Whereas it was manifestly impossible to consider this resolution at that session with- out serious detriment to the public business; and ' ' Whereas it is very questionable if it be competent for the Senate to consider the same after Mr. Patterson has ceased to be a member of the body: Therefore, "Resolved, That the pamphlet entitled 'Observations on the report of the committee of the Senate of the United States respecting the Credit Mobilier of America,' submitted by Mr. Patterson, be received, filed, and printed with theTeport of said committee." [The debate is found on page 204 of the Congressional Record, vol. i.] 426 SENATE ELECTION CASES. [Third session Forty-second Congress to third session Forty-sixth Congress.] RAY vs. McMlLLEN; McMILLEJST v^. PINCHBACK (MAER and EUSTIS); AND SPOFEORD vs. KELLOGG (MANNING). of Louisiana. William P. Kellogg, whose term expired March 3, 1873, resigned January 13, 1873. January 22, 1873, credentials of John Kay and WilUam J^. McMillen, each claiming to have been elected to till the unexpired term, were presented, and referred to the Committee on Privileges and Elections. Mr, Ray's credentials were signed by William P. Kellogg as governor, and Mr, McMillen's by John McEnery as governor". January 16, a resolution of the Senate directing the committee to inquire and report whether there was an existing legal State government in Louisiana had been referred to the committee. February 20. the committee submitted one report on the credentials and on the resolution. They reported that the State tleetion held in November, 1872, in which Messrs. Kellogg and McEnery each claimed to have been elected governor, was void for fraud; that the Kellogg government, so called, approached more nearly a gbvernmentde /acto, and the McEnery govern- ment a government dejm-e; that had the election been fairly conducted, Kellogg and a legislature of the same political party would have been elected, but that, while the Kellogg government was in possession of the State-house, there was not a quorum of both houses of the Kellogg legislature who had any pretense of having been elected to their seats; that, under such cji*oumstaiiccs,(,'on- gress had aulhority to order a new election. The committee recommended the adoption of resolu- tions that there was no State government existing at the time in Louisiana, and that neither Ray nor McMiHen was entitled to a seat, neither having been elected by the legislature of the State, and recommended the passage of a bill ordering an election in the State. Three members of the com- mittee submitted separate views dissenting from the conclusions of the majority. The bill referred to was rejected February 27, 1873. No further acttpn was taken on the credentials. The expenses incurred by Messrs. Ray and McMillen were reimbursed. The proceedings of the Senate relating to the resolution of Januarj- 16 an^ the bill referred to are not included in the proceedings given below. The legislature electing Mr. McMillen foV the unexpired texm ending March 3, 1873, elected him for the succeeding term, and the legislature electing Mr. Ray elected Pinckney B. S,. Pinchback for the succeeding term. I>ecember4, 1873, the credentials o.f both were referred to the Committee on Privi- 1 leges and Elections. December 15. the committee reported that they were evenly divided upon the question as to whether Mr. Pinchback was upon his credentials entitled to be sworn as a member, and asked to be discharged from the further consideration of the subject and to refer the whole matter to the determination of the Senate. On the same day a resolution was submitted that tlae^ credentials of Mr. Pinchback being in due form he was entitled to be sworn-^g a member, and that any grounds of contest should be made thereafter. January 26, 1874, the resolution was modified so that the credentials of Mr. Pinchback be referred to the Committee on Privileges and Elections, and that the committee be instructed to inquire into the conduct of Mr. Pinchback in connection with his election.- January 27, it was ordered that the credentialsof Mr. McMillen be referred to the com- mittee. The Senate debated the resolution of Jan uary 26, hut no further action was taken duringthe session. December 23, 1S74, a resolution was submitted tliat the Committee on Privileges and Elec- tions be instructed to report if Mr. Pihchback was entitled to be admitted on &pri7iia facie case, or if such admission should be postponed until after the investigation of the charges of corruption. Jan- uary 22, lp75, credentials of a second election of Mr. Pinchback, signed by Mr. Kellogg as governor, were presented. Tl/iey were referred the same day, together with all the papers in relation to the contested seat, to the committee. (All subsequent action by the Senate was on Mr. PJnchback's first credentials.) February 8, the committee reported that Mr. Pinchback had a prima facie title to ad- mission, and recommended the adoption of a resolution that he be admitted. There was a minority report. The Senate debated the resolution for some days, when it was ordered to lie on the table. March 5, the same resolution was submitted and debated, December 15, 1875, the Senate resolved "that the request of W. L. McMillen, heretofore claiming a seat in the Senate, for the return of his cre- dentials be granted." December 20, the credentials of Robert H. Marr, appointed by John McEnery as governor, to fill the vacancy occasioned by the resignation of Mr. McMillen, were presented and ordered to lie on the table. January 18, 1876, the papers purporting to be the credentials of James B.- Eustis, elected by the legislature of Louisiana toithe contested seat, were presented and ordered to lie on the table. January 24, they were referred to the committee. . January 28, the committee re- ported that Mr. Pinchback having been elected to that seat, there was no vacancy, and recommended that the papers relating to Mr. Eustis be laid on the table. Febi-tiary 3. the Senate resumed the con- sideration of the resolution of March 5, 1875, and March 8, the resolution having? been amended by inserting the word " not " before the word " admitted," the Senate resolved that Mr. Pinchback be not admitted. March 9, 1877, the Senate resolved that the credentials of Mr. Eustis be taken from the files and referred to the committee. December 1, the committee reported that the legislature elect- ing Mr. Eustis, made up according to what was known as the " Wheeler compromise," was the lawful legislature ; that a vacancy existed at the time of his election ; and that the committee felt bound to regard the vote of the Senate on Mr. Pinchback's claim as ihial adjudication. They re- ported a resolution that Mr. Eustis be admitted. December 10, the resolution was agreed to, and Mr. Eustis took the seat which had been vacant since the rcssignation of Mr. Kellogg, .lanuary 13, 1873. Mr. Pinchback was allowed compensation from the beginning of the term to the period of the determination of the contest. From the existence of two rival bodies, each claiming to be the legislature of Louisiana, arose another contestfortheseatforthe term beginning March4, 1877. Mr. Kellogg'scredentials were pre- sented January 20, 1877. Objection'havingbeen made to the oaths beingadministeredtohim March 5, the Senate resolved, March 7, that the credentials lie on the table, to be referred to the Committee on Privileges and Elections when appointed. October 17, the credentials of Henry M. SpofT'ord were pre- sented. October 18, the Senate resolved thatrthe credentials of Mr. Spoflford be referred to the com- mittee, and that thecommittee also report on the credentialsof Mt. Kellogg. November 2tt,thecom- tnittee reported that Mr. Kellogg's credentials were signed by Stephen B. Packard as governor, and hat he had been elected January 10, 1877, by what was known as the Packard legislature; that Mr. THE LOUISIANA CASES, 1873-80. 427 SpofFord's credentials were signed by Francis T. NichoUs as governor, and that bo Iiad been chosen , April 24, 1877, by what was Icnown as tlie Nicholls legislature ; tliat the committee had gone behind the certifloates of the returning officers of the State, and had investigated the elections of individ- ual members of the general assembly ; that they found that the returning offloers in throwing out certain polls where freedom of election was utterly destroyed, and declaring Republican candi- dates elected, did what they believed to be legal, and what was really equitable; that a sufficient number of the members by whose votes Mr. Kellogg was elected were lawfully and equitably enti- tled to their seats ; that afterwards the Nicholls legislature by illegal means came to contain an un- disputed majority of members lawfully elected to the general assembly, but that until and after the election of Mr. Kellogg the Packard legislature was de facto and dejure the government of Louisi- ana ; that upon that legislature devolved the duty of electiuga Senator ; that the duty was performed in the election of Mr. Kellogg; that no subsequent events,, especially successful revolution, could undo what had been lawfully done. , The committee recommended the adoption of the foUowini< resolutions : •' Resolved, That William Pitti Kellogg is, upon the merits of the case, lawfully entitled to a seat In the Sen6.te of the United States from the Stale of Louisiana for the term of six years, commencing on the 4tli day of 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." There was a minority report. November 30, the resolutions were a^eed to, and Mr. Kellogg took the seat. March 21, 1879, a memorial of Mr. Spofford was presented, praying for an investigation into his claim to a seat, which was referred to a committee. May 7,- the Senate resolved that the committee be authorized to make a full investigation into the subject. March 22, 1880, the com- mittee reported that the evidence taken showed that the Packard leg:islature was, in fact as well as in law, not a legislature, but a body ofmen assembled by fraud, held together by force, and con- trolled by bribery, with the aid and in the interest of the sitting member. The committee reported the testimony taken and recommendedlhe adoption of resolutions that Mr. Kellogg was not en- titled lo the seat in the Senate, and that Mr. Spofford was chosen by the legislature, and that he be admitted to the seat. A minority report claimetl that the resolutions of November 30, 1877, were binding as final decisions by the Senate; that a change in the party majority in 'the Senate wa.s the only change that had taken place since Mr. Kellogg took his seat in pursuanceof a resolution of November 30, 1877. The resolutions reported by the committee were debatedj but no further action was taken by the Senate. December 7, 1880, credentials of Thomas C Manning, appointed by the governor in place of Mr. Spofl'ord, who died August 20, 1880, were presented and referred to the com- mittee. No further action was taken on the credentials. Compensation from March 4, 1877. to August 20, 1880, were allowed to the representatives of the estate of Mr. Spofford. The expenses in- curred by Messrs. Kellogg and Manning were reimbursed. The history of the cases here given consists of a transcript of the proceedings of the Senate relating to them from Senate Journals, 3d sess. 42d Cong, to 1st sess. 47th Cong., and the reports of the com- mittee (except the testimony). .Special references to the debates of each day are inserted below, and references to the reports are given in foot-notes. KAY vs. McMILLEN. Contest for seat for unexpired term ending March 3, 1873. Wednesday, January 22, 1873. Mr. West presented the credentials of W. L. McMillen, elected a Senator by the legis- lature of Louisiana to fill the vacancy occafioned by the resignaition of William Pitt Kellogg; which were referred to the Committee on Privileges aud Elections. Mr. West presented the credentials of John Ray, elected a Senator by the legislature of Louisiana to fill the vacancy occasioned by the resignatioij of William Pitt Kellogg; which were referred to the Committee on Privileges and Elections. Thursday, February 20, 1873. ■Mr, Carpenter, from the Committee on Privileges and Elections, who were directed by a re.solution* of the Senate of January 16, 1873, to "inquire and report to the Senate whether there is an existing legal State government«in Louisiana,.atid how and by whom it is constituted," and to whom were referred the credentials of W. L. McMillen and John Kay, claiming, seats in the Senate in the place of W. P. Kellogg, resigned, subriiit- . ted a report (No. 457), accompanied by a billf (S. 1621) to estatblish a government ih the State of Louisiana, republican in form; which was read and passed to a second read- ing. Mr. Morton, Mr. Hill, and Mr. Trumbull, members of the Committee on Privileges and Elections,' each submitted views dissenting from the conclusions arrived at by the committee, which were ordered to be printed to accompany the report (No. 457). \' ' ' eepoet of committee. j In the Senate of the United States. Febeuaey 20, 1873.— Ordered to be printed. Mr. Carpenter submitted the fftUowing report to accompany bill S. 1621: The Committee on Privileges and Elections, to whom was referred Senate resolution of Januiiry 16, 1873, as follows: "Besolved That the Committee on Privileges and Elections be instructed to inquire ~*The resolution here given is the one on which this report was made: Theonejviven by an error in the Senate Journal (resolution of Janunry 7, 1873} was reported February 10 (Nc.417). + For copy of bill see Congressional Globe, part 3, 3d sess. 42d Cong., pages 1850,1851. i From Senate Reports, 3d sess, 43d Cong. , No, 457. Tlie accompanying testimony is here omitted. 428 "^ SENATE ELECTION CASES. and report to the Senate whether there is any existing State government in Louisiana and how and by whom it is constituted," And to which committee were also referred the credentials of John Eay and W. L. Mc- Millen, both claiming the seat supposed to have been made vacant by the resignation of William Pitt Kellogg, a Senator of the United States from the State of Louisiana, re- spectfully submit the following report: Your committee have devoted weeks to the investigation of the subjects referred to them, and have taken much record and oral testimony, which accompanies this report. On the 15th of January, 1873, John McEnery certifies, under what purports to be the great sieal of the State of Louisiana, that he is governor of said State; and that on the 14th day of January, 1873, W. L. McMillen was by the legislature of said State duly elected a Senator of the United States to fill the unexpired terra of Hon. William Pitt Kellogg. On the same day, January 15, 1873, William Pitt Kellogg certifies, under what purports to be the great seal of said State, that he is the governor of said State, and that John Eay was duly elected by the legislature of said State on the 15th day of Jan- uary, 1873, to fill said unexpired term of said Kellogg in the Senate of the United States. The certificate of said John McEnery is countersigned by Y. A. Woodward, assistant secretary of state; and the certificate of said-Kellogg is countersigned by P. G. Deslondes, secretary of state. The Senate must therefore determine whether either McMillen or Ray, and, if either, which, is entitled to said seat. The extraordinary fact that two men are claiming to be the governor of said State, and that two men are certified under the great seal of the State to have been elected to one and the same seat in the Senate, and the resolution of the Senate requiring your committee to inquire and report whether there is any existing State government in Lou- isiana and how and by whom it is constituted, have compelled your committee to inquire fully into the condition of things in that State; and the conclusions to which your com- mittee have arrived are now to be stated: On the 4th day of November last, Henry C. Warmoth was governor of said State, hav- ing been elected in 1868. On that day a general election for governor and other State officers, and one-half of the senate and all the members of the house of representatives of said State, ought to have been holden. The constitution of said State, art. 46, provides as follows: ' ' Returns of all elections for members of the general assembly shall be made to the secretary of state. ' ' The constitution, Title III, executive department, art. 48, provides as follows: "The supreme. executive power of the Sfete shall be vested in a chief magistrate, who shall be styled the governor of the State of Louisiana. He shall hold his office duiing the term of four years, and, together with the lieutenant-governor elected for the same term, be elected as follows: The qualified electors for representatives shall vote for gov- ' ernor and lieutenant-governor at the time and place for voting for representatives; the returns of §very election shall be sealed up and transmitted by the proper returning officer to the secretary of state, who shall deliver them to the speaker of the house of representatives on the- second day of the session of the general assembly then to be holden. The members of the general assembly shall meet in the house of representa- tives to examine and Count the votA. The person having the greatest number of votes for governor shall be declared duly elected; but in Ciise of a tie- vote between two or more candidates, one of them shall be immediately chosen governor by joint vote of the members of the general assembly. The person having Ihe greatest number of votes polled for lieutenant-governor shall be lieutenant-governor; but in case of a tie-vote between two or more candidates one of them shall be iraiiiediatelj' chosen lieutenant- governor by joint vote of the members of the general assembly." , Article 60 provides- as follows: "He (the governor) shall nominate and, by and with the advice and consent of the senate, appoint all officers whose offices are established by the constitution, and whose appointments are not herein otherwise provided for: Provided, however, That the general assembly shall have a right to prescribe the mode of appointment to all other offices established by law." These are provisions of the constitution with which the reconstructed State of Lou- isiana was admitted into the Union. On the 16th of March, 1870, the legislature of that State pretended to pass a law regulating elections, which among other things provided as follows: "Sec. 29. Be itfurilier enacted, &c., That in any parish, precinct, ward, city, or town, in which during the time of registration or revision of registration or on- any day of election, there shall, be any riot, tumult, acts of violence, intimidation, armed disturb- ance, bribery, or corrupt influences at any place within said parish, or at or near any poll THE LOUISIANA CASES, 1873-80. 429 or voting place, or place of registration or revision of registration, which riot, tumult, acts of violence, intimidation, armed disturbance, bribery, or corrupt influences shall prevent, or tend to prevent, a fair, free, peaceable, and lull vote of all the qualified electors of said parish, precinct, vrard, city, or town, it shall be, the duty of the com- missioner of election, if such riqt, tumult, acts of violence, iutimidation, armed disturb- ance, bribery, or corrupt influences occur on the day of election, or of the supervisor of registration, or any assistant supervisor of registration of the parish, if tliey occur during the time of registration or revision of registration, to njake in duplicate and under oath a clear and full statement of all the facts relating thereto, and of the effect produced by such riot, tumult, acts of violence, intimidation, armed disturbance, bribery, or cor- rupt influences, in preventing a fair, free, peaceable, and lull registration or election, and of the number of qualified electors deterred by such riot, tumult, acts of violence, intimidation, armed disturbance, bribery, or corrupt influences, from registering or vot- ing, which statement shall also be corroborated under oath by three respectable citizens, qualified electors of the parish. " When such statement is made by a commissioner of election or assistant supervisor of registration he shall iorward both copies to the supervisor of registration immediately on the close of the election. The supervisor of registration shall iorward one copy of all such statements, whether made by himself or a commissioner of election or by an assist- ant supervisor of registration, to the governor, and shall deposit one copy with the clerk of the district coutt of the parish. "Sec. 53. Beit further enacted, &c., That immediately upon the close of the polls on the day of election the commissioners of election at each poll or .voting place shall seal the ballot-box by pasting slips of paper over the keyhole and the opening in the top thereof, and fastening the same with sealing-wax, on which they shall impress a seal, and they shall write the pajaes of the commissioners on the said slips of paper; they shall forthwith convey the ballot-box so sealed to the ofiice of, and deliver said ballot- box to, the supervisor of registration for the parish, who shall keep his office open for that purpose from the hour of the close of the election until all the votes from the several polls or voting places of the precinct shall have been received and counted. The super- visor of registration shall immediately upon the receipt of said ballot-box note its con- dition and the state of the seals and fastenings thereof, and shall then, in the presence of the commissioners of election and three citizens, freeholders of the parish for such poll or voting place, open the ballot-box and count the ballots therein, and make a list of all tlie names of the persons and offices voted for, the number of votes for each person, the number of ballots in the box, and the number of ballots rejected, and the reason th-ere- rbr. Said statements shall be made in triplicate, and each copy thereof shall be signed and sworn to by the commissioners of election of the poll and by the supervisor of regis- tration. As soon as the supervisor of registration shall have made the statement above provided for, lor each poll in his precinct or parish, and it shall have been sworn to and subscribed as above directed, the supervisor of registration shall inclose in an envelope of strong paper or cloth, securely sealed, one copy of such statement from each poll and one copy of the list of persons voting at each poll, and one copy of any statements as to violence or disturbance, bribery or corruption, or other ofl'enses specified in section 29 of this act, if any there be, together with all memoranda and tally-lists used in making the count and statemeut of the votes, and shall send such package by mail, properly and plainly addressed, to the governor of the State. The supervisor of registration shall send a second copy of said .statement to the governor of the State by the next most safe and speedy mode of conveyance, and shall retain the third copy in his own possession. "Sec. 54. Be it further evacted, d-c, That the governor, the lieutenant-governor, the secretary of state, and John Lynch and T. C. Anderson, or a majority of them, shall be the returning officers for all elections in the State, a majority ot whom shall constitute a Quorum and have power to make the returns of all eleetions. In case of any vacancy by'death, resignation, or otherwise by either of the board, then the vacancy shall be filled bythe residue of the board of returning officers. The returning officers s-hall, after each election, before entering upon their duties, take and subscribe to the following oath before a judge of the supreme or any district court: " 'I, A. B., do solemnly swear (or affiini) that I will faithfully and diligently perform the duties of a returning officer as prescribed by law; that I will carefully and honestly canvass and compile the statements of the votes, and make a true and correct return of the election: So help me God.' "Within ten days after the closing of the election said returning officers shall meet in New Orleans to canvass and compile the statements of votes made by the supervisors of registration, and make returns of the election to the secretary of state. They shall cont.Sue in session until such returns have been completed. The governor shal 1 at such meeting open in the presence of the ■■'aid returning officers the statements of thesuper- Yiso]« of registratiop, and the said returning officers shall, from said st.itemcntSj canvass 430 SENATE ELECTION CASES. and compile the returnsof the election in duplicate. One copy of such returns they shall tile in the office of the secretary of state, and of one copy they shall make public procla- mation by printing in the official journal and such other newspapers as they may deem proper, declaring the names of all persons and officers voted lor, theniimber of votes for each person, and the names of the persons who have been duly and lawlully elected. The returns of the elections thus made and promulgated shall be 'prima /ac/f evidence in all courts of justice and before all civil officers until set aside, altor a contest according to law, of the right of any person named tliereiu to hold and exercise the office to which he shall by such return be declared elected. "The governor shall within thirty days thereafter issue commissions to all officers thus declared elected who are required by law to be commissioned. "Sec. 55. Be it further enacted, &c., That insueh canvass and compilation theretum- ing officers shall observe the following order: They shall compile first the statements from all polls or voting places at which there .shall have been a fair, iree, and peaceable regis- tration and. election. Whenever from any poll or voting place there shall be received the statement of any supervisor of registration, assistant supervisor of registration, or commissioner of election, in form as required by section 29 of this act, on affidavit of three or more citizens, of any riot, ttunult, acts of violence, intimidation, armed dis- turbance,Jjribery, or corrupt influences which prevented or tended to prevent a fair, free, and peaceable and full vote of all qualified electors entitled to vote at such poll or vot- ing place, such returning officers shall not canvass, count, or compile the statement of, votes from such poll or voting place until the statements from all other polls or voting places shall havje been canvassed and compiled. The returning officers shall then pro- ceed to investigate the statements of riot, tumult, acts of violence, intimidation, armed disturbance, bribery, or corrupt influences at any such poll or voting placp, and if from the evidence of such statements they shall be convinced that^such riot, tumult, acts cf violence, intimidation, armed disturbance, bribery, or corrupt influences did not mate- rially interfere with the purity and freedom of the election at suCh poll or voting place, or did not prevent a sufficient number of qualified voters thereat from registering or voting to materially change the result of the election, then, and not otherwise, said return- ing officers shall canvass and compile the vote of such poll or voting place with those previously canvassed and compiled; but if said returning officers shall not bs-iuUy sat- isfied thereof, it shall be their duty to examine further testimony in regard thereto, and to this end they shall have power to send for persons and papers. If, after such exami- nation, the said returning officers shall be convinced that said riot, tumult, acts of vio- lence, intimidation, armed disturbance, bribery, or corrupt influenoes did materially interfere with the purity and freedom of the election at such poll or voting place, or did prevent a sufficient number of the qualified electors thereat from registering and voting, to materially change the result of the election, then the said returning officers shall not canvass or compile the statement of the votes of such poll or voting place, but shall ex- clude it from their returns. The returning officers may appoint such clerks as may be necessary, for a length of time not to exceed thirty days, who shall be paid |5 per day each for the time actually served, which time shall be specified in a written account, subscribed and sworn to by such clerk, and approved by the returning officers. The auditor of public accounts shall issue his warrant upon the treasury for the amount of such account so subscribed and sworn to and approved. " Sbc 56. Be it further enacted, &c., That it shall be the duty of the secretary of state to transmit to the clerk of the house of representatives and the secretary of the senate of the last general assembly a list of the names of such persona as, according to the returns, shall have been elected to either branch of the general assembly;' and it shall be the duty of said clerk and secretary to place the names of the representatives and senators elect, so furnished, upon the roll of the house and of the senate, respectively; and those repre^ sentatives and senators whose names are so placed by the clerk and secretary, respect- ively, in accordance with the foregoing provisions, and none other, shall be competent to organize the house of representatives or senate. Nothing.in this act shall be construed to conflict with article 34 of the constitution- of the State. " Sec. 57. Be it further enacted, &c. , That should any of the returning officers named in this act be a candidate for apy office at any election, he shall be disqualified to act as returning officer for that election, and a majority of the remaining returning officers shall summon some respectable citizen to act as returning officer in place cf the one so disqualified." This act is in conflict with the constitution in several particulars. First, the consti- tution provides that the return of the election of all members of the legislature shall be made to the secretary of state. (See art. 46. ) And article 48 provides that the returns of every election for governor and lieutenant-governor shall besealed up and transmitted to the secretary of slate, who shall deliver them to the speaker of the house oif represent- atives tlieu next 1o be lioldcn, ami that the members of the general assembly— that is. THE LOUISIANA CASES, 1873-80. 431 both houses of the legislature— shall meet in the house of representatives to examine and count the votes lor governor and lieutenant-governor. The act provides that the returns shall be made to the governor, and that the governor, the lieutentant-governor, the secretary of state, and John Lynch and T. C. Anderson, or a majority of them, shall be returning officers for all elections in the State: that they shall examine, canvass, and count the votes, and determine who has been elected gov- 6rnor and to other State offices, and who members of the legislature. The act provides for a totally different machinery from that provided by the constitution tor the sale- keeping, examination, and count of the votes for governor and lieutenant-governor. Ihe act, in so far as it provides that Lynch and Anderson sjiall be members of said canvassing board, is in conflict with the -provision of the constitution in relation to appointments to office. ^ Under these provisions of the constitution and laws of the State, a general election was held in the State oh the 4th day of November, 1872, for governor and other Stateoffiters, and members of the legislature. At this election McEnery and Kellogg were candidates for governor, and Dibble, who was then judge of the eighth district court of New Orleans, and Elmore were candidates for the office of judge of said court. The election was in fact conducted, and returns thereof made, in pretended pursuance of the election law above quoted from. Governor Warmoth held in his own hands the entire machinery of the election. He appointed the registrars and they appointed the commissioners of election, and the returns from the parishes were made to him, as the law required, and not to the secretary of state, as required by the constitution. On the 13th of November, 1872, there was a meeting of the returning or canvassing board. Present: Warmoth, governor; Pinchback, lieutenant-governor; Herron, secretary of state, and Lynch, Anderson being absent. At this meeting Governor Warmoth was elected chairman of the board. Lynch was elected secretary, and the board adjourned to November 14, 12 m. It seems that Governor Warmoth had become satistied that the board, as constituted, would not do his bidding or execute his schemes, and he resolved to reconstruct it. This makes it necessary to consider the imbroglio which then existed in regard to the secretary of state. At the election in 1868, at which Warmoth was elected governor, Bovee was elected secretary of state. In August, 1871, upon pretense of some malfea- sance by Bovee, Warmoth issued a so-called ' ' executive order, ' ' suspending Bovee as sec- retary of state, and appointing Herron in his place. This "executive order," so far as your committee can asfiertain, had no warrant in the constitution or laws of the State, but was an act of usurpation. But Bovee commenced suit against Herron in the eighth district court of New Orleans, under the "intrusion actj" and in that court, Emerson, judge, presiding, it was declared that the governor had authority to suspend Bovee; that such suspension created a vacancy in the office, which the governor could fill by com- mission, to extend until the close of the next session of the legislature. Bovee attempted to appeal ftom this decision, but the supreme court dimissed the appeal for the reason that it had not been taken in time. This left the decision of the court below in full force, and it has never been set aside or reversed. • The legislature next met in January, 1872, when Governor Warmoth presented to the house of representatives charges against Bovee, and the house appointed a committeeto investigate these charges, with a view to his impeachment. This investigation lasted for some time, and, finally, near the close of the session, on the application of Bovee, was continued to the next session of the legislature, upon the condition that Bovee should remain suspended until the next session. In March, 1872, after the adjournment of the legislature, Bovee brought a second suit •against Herron in the eighth district court of New Orleans, and this court decided. Dib- ble, J., presiding, that Bovee was entitled to the office, upon the ground that, conceding his original removal and the appointment of Herron in his place to have been legal, yet the commission of Herron expired with the session of the legislature next after the re- moval of Bovee and appointment of Herron. This decison was appealed from to the supreme court, and affirmed about the 2d day of December, 1872. In the mean time, on the 14th of November, 1872, at 10 a. m. , Governor Warmoth had appointed Wharton in place of Herron, who up to that time had been secretary of state de facto; and the governor defends this upon two grounds: first, thatHerron's com- mission expired with the adjournment of the legislature, leaving the office vacant, and that by the constitution the governor is authorized to fill all vacancies happening during the vacation of the legislature; and, second, that Herron was a defaulter in a former office, and. by a provision in an amendment tb the constitution was ineligible to anyoffice while thus in default. Wharton, under his appointment, obtained, possession of the the office and 1 eld it, performing its duties down to the time when the supreme court — about December 2, 1872 — decided, in Bovee's second suit, that he (Bovee) was entitled to tjie ofljce, 432 SENATE ELECTION CASES. Governor AVarmoth, apparently apprehending that this decision of the supreme court, on being certified to the eighth district court of New Orleans, would be executed by the installation of Bovee in the office of secretary of state, issued a commission to Elmore as judge of said court, upon the ground that Elmore had been elected at the election of November 4, 1872, in place of Dibble, and seated him by force on the bench to the exclu- sion of Dibble, although no canvass had been made of the votes given at said election ibr - the office of judge of said court; and when the mandate went down from the supreme court in the suit in which that court had decided that Bovee was legally secretary of state, Judge Elmore refused to execute the mandate and issue the proper writ to put Bovee in possession of the office. Thereupon the supreme court adjudged Elmore to be in contempt, and sentenced him to a fine of |50, and imprisonment for ten days, which fine and imprisonment Governor Warmoth remitted by pardon. No writ in favor of Bovee was issued before the troops of theUnitedStates took possession of the State-house, as hereinafter stated, about the 6th of December, 1872, wheto Wharton was excluded from, and Bovee admitted to, the exercise of the office. Let us now return to the narrative of events following the last November election. We have seen that the first meeting of the board of canvassers, or returning officers, as styled by the law, was held November 13, 1872, and adjourned to November 14, at 12 noon. Before the adjourned meeting of tbe board, to wit, November 14, 10 a. m., Gov- ernor Warmolh removed Herron and appointed Wharton in Lis place, who qualified both as secretary of state and a member of the canvassing board; and at 12noon on that day, the hour to which said board stood adjourned, Warmoth, governor, Ilerron, sec- retary of state, Pinchback, lieutenant-governor, and Lynch appeared in said board. Pinchback and Anderson, having been candidates at the last November election, were disqualified to serve en said board. Wharton at this time appeared and presented his commission as secretary of state, and claimed a feat in the board in place of Herron. How these two vacancies v\ ere filled is disputed in the testimony. Governor Warmoth, Wbaiton, Cooley, Biagdon, Sheiidan, and others swear that Hatch and Da Font e were elected in the place of Pinchback and Arderscn; while en the other hard it is testified by Lynch and Herron that Longstreet and Hawkins were elected to fill these vacancies. This difference gave rise to two boards: First, Warmoth, governor, Wharton as secre- tary of state. Hatch, and Da Ponte, claiming to be a majority of the board, admitting that Lynch was entitled tp a seat, from which, however, he absented himself Second,, Herron, claiming still to be secretary of state, notwithstanding,Wharton's appointinent; Longstreet and Hawkins, claiming to have been elected to fill the vacancies of Pinchback and Anderson; this board admitting that Governor Warmoth was one of its members, but he absenting himself from its sessions, v These boards, for convenience of designation, will herealter be called the Warmoth board and the Lynch board. Each of these boards appealed to the court. . The Lynch board, about November 18, 1872, commenced suit against the Warmoth board in the eighth district court of New Orleans, Dibble, J., presiding. About the same time the Warmoth board commenced suit against the Lynch board in the same court, and before the sanie judge. Dibble granted an injunction in both cases, enjoining both boards. In connection with this extraordinary proceeding of injunction against injunction, it should be borne in mind that Dibble was a judge holding over until his successor should be ccmmissioiied, and was therefore directly interested in restraining any canvass of votes which must deter- mine that his opponent (Elmore) was duly elected and entitled to his (Dibble's) seat; and that he would continue in office as long as the injunctions granted by him s-hould - prevent a legal determination that his opponent (Elmore) had bCen elected in his place. That Elmore had, in fact, been elected over Dibble, two to one, is admitted by all parties in this controversy. About the 19th of November Dibble decided the suit commenced by the Lynch board in their favor, and enjoined the Warmoth board, aud on the same day dismissed the suit; in favor of the Warmoth board against the Lynch board. Thereupon Governor Warmoth took Irom his safe a bill which had beeii passed by the legislature in th6 previous spring, but never approved by him so as to become a law, and on the 20th of November, 1872, gave it his approval. This act, approved November 20, 1872, among other things, provides as follows: "Sec. 2. Be itfuHhcr enacted, t£-c. , That five persons, to be elected by the senate from all political parties, shall be the returning officers for all elections in the State, a majority of whom shall constitute a quorum, and have power to make the leturns of all elections. In case of any vacancy by death, resignation, or otherwise, by either of the board, then the vacancy shall be filled by the residue of the board of returning officers. The return- ing officers shall, after each election, before entering cm their duties, take and subscribe to the'lbllowing oath before a judge of the supreme or any di.'^trict court: '"I, A. B., do solemnly swear (or affirm) that 1 will f£i*hfnlly .ind diligeiitly perform the duties of a returning officer as prescribed bjr law; tl at I will carefully anci honestly THE LOUISIANA CASES, 1873-80. 433 canvass and compile the statements of the votes, and make a true and correct return of the election: So help me God.' ".Within ten days after the closing of the election said returning officers shall meet in Nevp Orleans to canvass and compile the statement of votes made hy the commissioners of election, and make returns of the election to the secretary of state. ' They shall con- tinue in session until such returns have been compiled. The presiding officer shall, at such meeting, open, in the presence of said returning officers, the statements of the com- missioners of election, and the said returning officers shall, from said statements, canvass and compile the returns of the election in duplicate; one copy of such returns they shall file in the office of the secretary of state, and of one copy they shall make public procla- mation, by printing in the official journal and such other newspapers as they may deem proper, declaring the names of all persons and officers voted for, the number of votes for «ach person, and the names of the persons who have been duly and lawfully elected. The return of the election thus made and promulgated shall be prima facie evidence in all courts of justice and before all civil officers, until set aside after contest according' to law, of the right of any person named therein to hold and exercise the office to which he shall by such return be declared elected. The governor shall, within thirty days there- after, issue commissions to all officers thus declared elected who are required by law to be commissioned." And further, as follows: " Sec. 71. Be it further enacted, die, That this act shall take effect from and after its passage, and that all others on the subject of election laws be, and the same are hereby, repealed." Governor Warmoth claimed that the effect of this act was to abolish all previously •existing canvassing or returning boards; and that inasmuch as the act took effect during the Vacation of the legislature he was authorized to appoint the board under that pro- vision of the constitution before quoted, which authorizes the governor to fill vacancies occurring during such vacation. On the same day upon which the governor approved the last-named act he issued a proclamation calling a session of the legislature to convene on the 9th day of December, ■ 1872. It is admitted on all hands that the members of the legislature elected Novem- ber 4, 1872, if any were elected, were authorized to convene under this proclamation. On the 21st of November motion was made before Judge Dibble for a new trial in the snit of the Lynch board against the Warmoth board, in which the judge had decided in favor of the Lynch board, enjoining the Warmoth board, and in the suit in favor of the Warmoth board against the Lynch board, which that judge had dismissed; and these motions were set down for hearing before judge Dibble on the 25th of November. Be- fore this day arrived Governor Warmoth pretended to be convinced that Elmore had been elected in place of Dibble; commissioned Elmore, who, supported by the sheriff and a posse comitatus of roughs and thugs, took his place on the bencli and excluded Dibble. It should be stated, however, in this connection that although no legal canvass had been made ascertaining the fact that Elmore was elected, nevertheless it is admitted by all parties that he was in fact elected by about 9,000 majority. On the 3d of December, Elmore, who had been commissioned as aforesaid, and was seated on the bench substantially by force, granted the motion for new trial in both cases upon the ground that the act approved November 20 had abolished all former boards: and he dissolved the injunction granted against the Warmoth board and dis- missed both suits. Governor Warmoth having thus by the judgment of a judge by him prematurely com- missioned rid himself of the embarrassment arising from the two boards of canvassers pretending to act, on the evening of the 3d of December proceeded to fill the board pro- vided for by the act of November 20 by appointing De Feriet, Wiltz, Isabel, Austin, and Taylor in pretended pursuance of the authority conferred upon him by article 61 of the constitution, to fill vacancies happening in the vacation of thelegislature. We now come to the saddest chapter in this melancholy business — the interference of Federal authority with the affairs of the State of Louisiana. The fifteenth amendment of the Constitution provides as follows : "Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States, or by any State, on account of race, color, or previous condition of servitude. . . "Sec. 2. The Congress shall have power to enforce this article by appropriate legis- The subject of suffrage belongs entirely to the States and must be regulated by them exclusively, with the single exception created by this amendment, that no State can deny to a citizen of the United States the right to vote on account of race, color, or pre- vious condition of servitude; and the extent of the power of Congress over the subject is to see to it that the States do not violate this provision. Congress has the undoubted^ S E 28 434 SENATE ELECTION CASES. power to enact sucli laws as are necessary and proper to secure to the colored citizen his right to vote upon the same terms and conditions and with the same effect as the right is enjoyed and exercised by white citizens; and, speaking of the case before us, this is the extent of jurisdiction possessed by the National Government in regard to State elections. ^ The act of Congress of May 31, 1870 (16 Stat, at Large, 140), provides as follows: "Section 1. That all citizens of the United States who are or shall be otherwise qualified by law to vote at any election by the people in any State, Territory, district, county, city, parish, township, school district, municipality, or other territorial subdi- vision, shall be entitled and allowed to vote at all such elections without distinction of race, color, or previous condition of servitude, any constitution, law, custom, usage, or regulation of any State or Territory, or by or under its authority, to the contrary not- withstanding." The second section provides for registration under the laws of the State without dis- tinction of race, color, or previous condition of servitude; and section 3 provides that where any act is required by any State law — ^as registration, for instance — "the offer of any such citizen to perform the act required to be done, as aforesaid, shall, if it fail to be carried into execution by the wrongful act" of the State officer, be deemed and held a performance in law of the act required; and that the person so offering and failipg, as aforesaid, shall be entitled to vote in the same manner as if he had in fact perlbrmed such act. Section 23 is as follows: "That when any person shall be defeated or deprived of his election td any office, ex- cept elector of President or Vice-President, Eepresentative or Delegate in Congress, or member of a State legislature, by reason of the denial to any citizen or citizens who shall offer to vote, of the right to vote, on account of race, color, or previous conditioQ of servitude, his right to hold and enjoy such office and the emoluments thereof shall not be impaired by such denial; and such person may bring any appropriate suit or pro-' ceeding to recover possession of such office; and in cases where it shall appear that the sole question touching the title to such office arises out of the denial of the right to vote to citizens who so offered to vote, on account of race, color, or previous condition of servitude, such suit or proceeding may be instituted in the circuit or district court of the United States of the circuit or district in which such person resides. And said cir- cuit or district court shall have, concurrently with the State courts, jurisdiction thereof, so far as to determine the rights of the parties to such office by reason of the denial of the right guaranteed by the fifteenth article of amendment to the Constitution of th& United States and secured by this act." This act was amended by the act of February 28, 1871, 16 Stat. L., 433, section 15,. providing as follows: "That the jurisdiction of the circuit court of the United States shall extend to all cases in law or equity arising under the provisions of this act or the act hereby amended; and if any person shall receive any injury to his person or property, for or on account of any act by him done under any of the provisions of this act or the act hereby amended, he shall be entitled to maintain suit for damages therefor in the circuit court of the United , States in the district wherein the party doing the injury may reside or shall be found." These acts were passed to give effect to the provisions of the fifteenth amendment and regulate elections for members of Congress; and, so far as they apply to the election of State officers and members of State legislatures, they are confined to the single purpose of securing: to all citizens the right to vote without distinction of race, color, or previous condition of servitude; and an act of Congress attempting to go beyond this would be void for wani of authority in Congress to enact it. Therefore, a contest between Iwo citizens of the same State in relation to the office of ^vernor, or other State office, can- not be waged in a Federal court, except upon the ground that the contestant has been defeated or deprived of his election by reason of the denial to any citizen or citizens of the right to vote on account of race, color, or previous condition of servitude. If the contestant has been defeated in consequence of a denial to citizens of the right to vote on account of their belonging to a particular political party, or a particular church, or for any reason, except race, color, or previous condition of servitude, no Federal court has power to hear and determine it. Keeping this in mind, we come to consider the proceedings in the circuit court of the United States for the district of Louisiana. On the 16th of November, 1872, Kellogg filed his bill on the equity side of said cir- cuit court against the Warraoth board — ^Warmoth, Wharton, Hatch, and Da Ponte — and against McEnery, and the New Orleans Eepublican Printing Company, publishers of the New Orleans Republican, being the official journal of the State, stating that a gen- eral election was hejjd on the 4th day of November, 1872, for governor and other State officers; that Kellogg and McEnery were candidates for governor at said election"; that THE LOUISIANA CASES, 1873-80. 435 Governor Warinoth had the power by law to appoint registrars; and that prior to the election Warmoth ha;d repeatedly avowed his intention to unlawfully defeat the election of Kellogg, and to that end had appointed persons who would aid him in his purpose; and made it a condition of their appointment that they should so aid him, and that one of hia plans was to deprive a large number 6f citizens of the right to vote, by refusing them registration on account of their race, color, and previous condition; that this plan was carried into execution, so that at least 10,000 voters were on that account deprived of registration; that persons so refused registration applied to vote at the election and were denied; that he (Kellogg) was in "possession of evidence of this fact; and that he is informed and believes that trom three to five thousand persons who had offered to be registered had been denied the right to vote on account of race and color. That Warmoth, combining with the officers appointed by him, had caused a dishonest a,Tii false count of votes cast at said election, and had falsified and caused false returns of the election to be made; that a number of ballots of citizens of color, sufficient to have elected him, had not been counted. That when the canvassing board met, November 14, 1872, Longstreet and Hawkins were elected by the board to fill the vacancies of Pinchback and Anderson; that War- moth, being in possession of returns, refused to open and present the same to said board; that Warmoth, without authority, had pretended to eject Herron from the office of sec- retary of state, and had attempted with force and arms to take possession of the records and archives of that office, and had unlawfully pretended to appoint Wharton secretary of state; and that Wharton pretended to be a member of the board, and that Warmoth and Wharton had pretended to elect Hatch and Da Ponte to fill the vacancies of Pinch- back and Anderson, and that Warmoth had unlawfully opened and submitted the returns to this illegal board, and that it was the intention of the board to make a false canvass and declare McEnery elected; that although the canvass by such unlawful board would be void, yet their determination would embarrass him in legal proceedings to obtain said office; and that it was the intention of Warmoth and his board to destroy the returns; and the intention of McEnery and the Warmoth board to have it declared and published in the official paper that he (Mctnery) was elected. That Warmoth had totally disregarded the Jaw in regard to said election ; that he had done everything in his power to defeat the will of the people; that he intended to de- stroy the returns and all evidences of the election, so as to render it impossible for him (Kellogg) ever to establish his right to the office. The bill prayed an injunction against Warmoth, restraining him from canvassing the returns except in presence of the Lynch board, and commanding him not to deliver the returns to the Warmoth board, and restraining the Warmoth board from acting or mak- ing any return or certificate in regard to said election; and restraining McEnery from pretending to act as governor, or asserting any claim to the office, by virtue of any certifi- cate or canvass then made, or thereafter to be made, by the Warmoth board; and re^ straining the publishers of the official newspaper from publishing any canvass made by the Warmoth board. The prayer for the relief is as follows: "And it may also please your honors to order and adjudge that the said defendant, H. C. Warmoth, within a period of time to be fixed by your honors, do make and deposit in this honorable court, in the office of the clerk thereof, full, true, and exact sworn copies of each and every paper, document, affidavit, tally-sheet, list, sworn statement^ or certificate or letter which he may have received or may have come into his possession from any commissioner or commissioners, or any officer concerned in the control or man- agement of said election, or who had any duties to perform in connection therewith, and from all supervisors or assistant supervisors of election, in any manner relating to said election, in order that the same may be beyond the power of destruction by the said de- fendant Warmoth and his said confederates, and in order that the same may be saved to your orator as e^'idence to enable him to establish his right to the office of governor as aforesaid in any judicial proceedings which he may be compelled to institute in this court to establish and vindicate the same. " And that the same may be also preserved for use or proof in support of your orator's bill in this behalf, and to establish his right to the relief by him herein and hereby prayed for, and that the said evidence, documents, &c., to be produced remain on file in this court in order that the same may be preserved as evidence in any actipn which your ora- tor may be required to institute in this court to establish his said right to said office." The bill also contained prayer for process and for general relief. It is at least questionable whether this bill on its face presented a case within the jurisdiction of the Federal court. Although it is alleged in the former part of the bill that about ten thousand persons had been denied registration on account of race and color, and that from three to five thousand of those thus deprived of registration were denied the right to vote, yet this vrrong was completed at the time the bill was filed, and 436 SENATE ELECTION CASES. it was not in the power of tlie court to undo it. In the subsequent part of the bill the pleader appeals to ignore the fact of race, color, or previous condition of servitude as an clement of jurisdiction. Again, it can hardly be claimed that Kellogg had been deprived of his officfe of gov- ernor at the time the bill was filed. The bill s1Mes, indeed, Kellogg's apprehension that this board would declare McEnery elected, and that such declaration would embarrass him in the enforcement of his legal right to the office. On the other hand, it may reasonably be claimed that if Warmoth should destroy the returns it would be out of Kellogg's power to establish the fact that he had been defeated because citizens had not been allowed to vote on account of race and color. Conceding, however, that the bill did present a case within the jurisdiction of the court, that jurisdiction was limited by the scope of the bill, and gave no warrant to the extraordinary proceedings which were subsequently had in the case. The only legiti- mate purpose of this bill was to preserve testimony, and the subsequent attempt of the court, on a bill in equity, to determine the title of Warmoth, Wharton, and others to act as State canvassers was a matter wholly beyond the jurisdiction of Federal courts. The bill shows that Warmoth, Wharton, Hatch, and Da Poute claimed to be members of the board, and were acting as such; and alleges that they were not members of the board, but that Lynch, Herron, Longstreet, Hawkins, and Warmoth were the legal mem- bers of said board. Wha,t jurisdiction had the Federal court to determine the right between these contending boards ? They were State officers, and it is not alleged in the bill that any colored man was deprived of any right which had resulted in the election of Haich and Da Ponte. Besides, the question of right to this office was entirely collat- eral in the proceedings. Wharton and Longstreet might have contested their respective rights in the State courts under the "intrusion act" of that State, which corresponds to proceedings by quo warranto at the common law. But it was never before pretended that .such a question could be settled by suit in equity. The utmost which the court had authority to do upon this bill was to restrain the destruction of the returns and documents, to preserve which the bill was filed. They were State records, and the Federal court had no right to take possession of them. The bill did not ask the court to do so, but only to require copies to be filed. But the court issued the following restraining order: ' ' United States of America, circuit court of the United States, fifth circuit and district of Louisiana, November term, A. D. 1872. "New Oelbans, Satwrday, November 16, 187^. "Court met pursuant to adjournment. Present, the Hon. E. H. Durell, district judge. "William P. Kellogg vs. }■ No. 6830. "H. C. Waemoth et al. ^No. L. J "On motion of J. R. Beckwith, counsel and solicitor for complainant, it is ordered that H. C. Warmoth, Jack Wharton, Frank H. Hatch, Durant Da Ponte, John McEnery, and the New Orleans Republican Printing Company, publishers of the New Orleans Republican, a newspaper, being the official journal of the State of Louisiana, beenjoined and restrained from in any manner, feither directly or indirectly, pretending to consider or canvass any certificate, statement, or return of any supervisor of registration, except in the presence of the legal returning officers named in the bill of complaint filed this day, to wit, John Lynch, Jacob Hawkins, James Longstreet, and Francis J. Herron; and it is further ordered that the said H. C. Warmoth desist and refrain from submii> ting to the defendants. Jack Wharton, Frank H. Hatch, and Durant Da Ponte, or any or either of them, either as pretended members of any board of returning officers of elec- tions of the State of Louisiana, or as individuals, any statements, certificates of returns, or pretended statements, certificates, or returns of election, and to desist from assisting, aiding, abetting, or permitting any other person or persona whatsoever other than John Lynch, Jacob Hawkins, James Longstreet, and Francis J. Herron, or their duly quali- fied successors, asifeturning officers, to inspect, consider, or have custody of or access to said statements, certificates, or returns of said supervisors of registration, or any other paper, document, affidavit, or proof that may have come into the handsof said Warmoth, or shall hereafter come into his hand, relating to said election, or to the fairness or cor- rectness thereof, and which by law it is his duty to submit to the said John Lynch, .Tacob Hawkins, James Longstreet, and Francis .1. Herron, the said legal board of returning officers of elections, qnd which should be properly considered by them. "And it is further ordered that the said It. C. Warmoth, Jack Wharton, Franlc H. TUE LOUISIANA CASES, 1873-80. 437 Hateb, and Durunt Da Ponte, and each of them, be commanded and enjoined to refrain and desist from pretending to act together as a board of returning ofllcers, or as return- ing ofScers of elections, from canvassing or attempting to canvass or consider any cettiii- cate, document, affidavit, return, statement of votes, or any paper whatsoever properly relating to said election mentioned in the said bill of complaint, and from attempting to make a canvass, to make, declare, or publish any pretended deduction, calculation, state- ment, or proclamation based thereon, or pretended to be derived therefrom, in any way relating or pertaining to said election mentioned in the said bill of complaint, held on the 4th day of November, 1872, or certifying to any candidate for office at said election any certificateof election, or anystatementof the result of said election tending to show any right to office in any person growing out of ballots cast at said election, and from meddling with, altering, suppressing, falsifying, obliterating, or destroying any document, paper, voucher, proof, statement of votes, or certificate relating to said election. And itis further ordered that the said John McEnery be commanded, enjoined, restrained, and inhibited from in any manner acting or pretending to act as governor of the State of Louisiana, and from making amy pretensions or asserting any claim to the office of governor of said State by virtue of any pretended evidence of election thereto under or by virtue of any certificate, document, or count, canvass, or adj udication now or hereafter made by the said defendant, H. C. Warmoth, and the said defendants. Jack Wharton, Frank H. Hatch, Dnrant Dn Ponte, in this bill charged to be unlawfully combined and conspired as returning officers. And it is further ordered that the said New Orleans Republican Printing Company, under whose control and direction the newspaper called the New Orleans Republican, the official journal of the State of Louisiana, is published, whereof W. R. Fish is presi- dent, be enjoined and restrained from in any manner publishing any official notice, document, or statement relating to any canvass or statement of votes made, or pretended to be made, or in any manner emanating i'rom the said H. C. Warraotli, and said Jack Wharton, Frank H. Hatch, Durant Da Ponte, or either of them, as a pretended board, of returning officers of elections, in any manner relating to the said election hel(^ on the 4th day of November, A. D. 1872. "And it is further ordered that the said defendants, H. C. Warmoth, Jack Wharton, Frank H. Hatch, Durant Da Ponte, John McEnery, and the New Orleans Republican Printing Company, named in the bill of complaint this day filed, be so commanded, en- joined, and restrained until the further order of this honorable court." And this order was duly served by the marshal on the 17th of November, 1872. On the 19th of November, 1872, Kellogg filed an affidavit, as follows: "William P. Kellogg, being first duly sworn, deposeth and saith that he is advised and informed, and thereby believes, that the said defendants, H. C. Warmoth, Durant Da Ponte, Jack Wharton, and Frank H. Hatch, are now, and at all times since the ruak- ing and service of the -restraining order, issued in this cause, have been acting in disre- gard and in disobedience thereof, in contempt of the lawful orders of this court, and have aided, abetted, and countenanced the continued possession, custody, and canvass of the returns, certificates of officers connected with said elections, by persons other than the said Lynch, Longstreet, Herron, and Hawkins, and have in other material respects dis- obeved the orders of this honorable court. ■' "WM. P. KELLOGG. " Sworn to and subscribed before me this 19th Novei^ber, 1872. "J. W. GURLEY, " United States Commissioner." A rule was granted against Warmoth atid others to show cause, upon which interrog- atories and answers were filed, and this matter was slowly progressing when Governor Warmoth, to escape the clutches of Judge Durell, approved the act of November 20, 1872 which act repealed all the laws before then in force in regard to canvassing boards, and of course legislated both the Warmoth and Lynch boards out of existence. After this it is difficult to see what was left of the case made by Kellogg's bill in the United States . court. Warmoth exercised the legislative power of the State, took the whole subject away from the United States court, and, on the evening of December 3, appointed De Feri'et Wiltz, Isabelle, Austin, and Taylor a canvassing board under the act of Novem- ber 20' and at the same time, as governor, commenced suit in the eighth district court before' Judge Elmore, and obtained an injunction restraining the Lynch board, upon the ground that the act of November 20 had abolished that board. The Lynch board applied to the Federal court for a certiorari to remove this suit of Warmoth against the Lynch board into the Federal court. The State court treated the wiitwith contempt and made no returnto it. No proceedings were had in the Federal court on ' ' ' Within ten days after the closing of the election said returning officers shall meet, in New Orleans to canvass and compile the statement of votes made by the commission- ers of election, and make returns Of the election to the secretary of state. They shall continue in session until such returns have been compiled. The presiding officer shall at such meeting open, in the presence of the said returning officers, the statement of the commissioners of election, and the said returning officers shall, from said statements, can- vass and compile the returns of the election in duplicate; one copy of such returns they shall file in the office of the secretary of state, and of one copy they shall make public proclamation by printing in the official journal and such other newspapers as they may deem proper, declaring the names of all persons and officers voted for, the number of votes for each person, and the names of the persons who have been didy and lawfully elected. The return of the election thus made and promulgated shall be ^rima/acte 442 SENATE ELECTION CASES. evidence in all courts of justice and before all civil ofSoers until set aside after a contest, according to law, of the right of any person named thereinto hold and exercise the or&ce to which he shall by such return be declared elected. The governor shall, within thirty -days thereafter, issue commissions to all ofScers thus declared elected, who are required by law to be commissioned. "'Sec. 44. Be it further enacted, <&e., That it shall be the duty of the secretary of state to transmit to the clerk of the house of representatives and the secretary of the sen- ate of the last general assembly a list of the names of such persons as, according to the returns, shall have been elected td eitherbranch'of the general assembly; and it shall be the duty of the said clerk and secretary to place the names of the representatives and senators elect so furnished upon the roll of the house and of the senate, respectively; ^nd those representatives and senators whose names are so placed by the clerk and secre- tary, respectively in accordance with the foregoing provisions, and none other, shall be •competent to organize the house of representatives or senate. Nothing in this act shall be construed to conflict with article 34 of the constitution of the State. ' "I see, therefore, no way of avoiding the conclusion that, in any view of the case, the Herron board of returning officers are still authorized to continue their duties, and are _still entitled to the protection of the court. "The court keeps within the acts of Congress and the fifteenth amendment. It does not pretend in any way to make a governor of the State, or in any degree to interfere with the voice of the people expressed through the ballot-box. What it does is to aid in mak- ing known the voice of the people, in accordia,nce with sections 3 and 23 of the act of ■Congress, and with section 15 of the amendment thereto, and in its action is only a -clearly needed adjunct of the legal returning board. Many propositions were discussed •during the argument which it is not necessary for me to now pass upon. It is enough that I find the statute constitution; that the court has jurisdiction, and that the board ■of returning officers, composed of H. C. Warmoth and Messrs. Hawkins, Lynch, Long- styeet, and Herron, are the.legal board, and as such entitled to the protection of this •court. ' 'As to the question of the ineligibility of the complainant in the bill to the office of governor, this question cannot arise under the bill, and could only come before this court in a direct action at law to test the title to~the oifice. It is not, therefore, necessary or proper for me to decide it now; but were it otherwise, I would say that the reason of the thing seems to favor his eligibility, the object of the provision of the* constitution being to prevent a man serving two masters and having a divided allegiance. And the fact that, contemporaneously with the adoption of the constitution which first contained this provision, the then Territorial governor was by the then constitutional convention made governor of the State provisionally, and at the ensuing election made by the peo- ple the first governor of the State, would seem to indicate that the meaning of the inhi- bition was understood to be as I above stated. "It only remains for me now to make the following order: "Circuit court of the United States, district of Louisiana, in equity. "William Pitt Kellogg, complainant, vs. 'Henry C. Waemoth, Jack Whabton, Frank H. Hatch, Durant Da Ponte, and John McEnery, and the New Orleans Eepublican Printing Company, defendants. No. 6830.— Order entered December 6, 1872. "This cause having come on for hearing on the complainant's motion for writs of in- junction ^enderefe lite, and for other interlocutory orders prayed for in complainant's bill and amended bill of complaint, and the court having considered the pleadings, affidavits, and exhibits filed in the cause, and having heard counsel as well for the complainant as for said defendants, and the court having considered the premises, " It is ordered — ' ' That the said defendant, Henry C. Warmoth, during the pendency of this cause, be, and he hereby is, until the further order of this court, enjoined, inhibited, and restrained from in any manner, either directly or indirectly, considering, or pretending to consider or canvass, any statement, certificate, or return of any supervisor or assistant supervisor •of registration, or any office, having any duties to perform about or concerning an elec- tion held on the 4th day of November, A. D. 1872, in the State of Louisiana, or relat- ing to any votes or ballots cast at said election, except in the presence of John Lynch, -Jacob Hawkins, James Longstreet, and George E. Bovee, a board of returning officers for said election; and that he do further desist and refrain from submitting, or allowing to be submitted, or from aiding or assisting in the submission to the defendants, Frank Hatch, Jack Wharton, Durant Da Ponte, or any other person, or persons whatsoever, other than the said Hawkins, Bovee, Lynch, and Longstreet, any paper, document, affi,- davit, statement of votes, return of officers of election, or other proof- in any manner THE LOUISIANA CASES, 1873-80. 443 relating to said election, and from allowing any other person or persons whatsoever, other than those in this order excepted, whether pretending to act as returning officers, or in any other capacity, to inspect, consider, have access to, canvass, or tamper with any paper, document, affidavit, statement of votes, returns or written proof relating to said election or to the fairness and correctness thereof, that may have heretofore or may hereafter come into his hands or possession, and which, by law, should properly be laid before, submit- ted to, or considered by such returning officers of election in making a canvass thereof. And that the said defendant, H. C. Warmoth, be further enjoined and inhibited from altering, suppressing, mutilating, destroying, or secreting any such document, proof, or paper. And that he further desist and be enjoined from in any manner interfering with, obstructing, or hindering the said Lynch, Longstreet, BOvee, and llawkins, or either of them, from full and complete access to, as well as custody of, all such documents, papers, and proofs relating to said election, as he may or shall have in his possession, custody, or control, or as they shall or maydemand, either byrefusing to deliver such documents or proofs to them, or either of them, or by any suit or proceeding instituted with the intent to hinder, delay, or obstruct them in the performance of their duty as returning officers. And that he be further restrained and enjoined from issuing commissions to anypersons based upon any calculation, deduction, or pretended canvass of ballots cast at said election, or make, publish, sign, or depositin the office of the secretary of state, or in any other public office, orcause to be so deposited, anydocument, statement of persons elected to any offices orpositions of trust at said election, and from giving any effect to thesame if alreadyflled and deposited, unless the same be with the concurrent action and lawfully given consent' of the said Lynch, Hawkins, Bovee, and Longstreet, or amajority thereof, or of a sufficient number of them to constitute a majority of a board of returning officers, acting as such returning officers. "And it is further ordered that the said defendants, Jack Wharton, Frank H. Hatch, Durant Da Ponte, and the New Orleans Eepublican Printing Company, until the final hearing of this cause, or until the further order of the court, be severally and respect- ively enjoined and restrained to the same extent, effect, and manner as said complainant has in his said bill of complaint prayed they may severally and respectively be restrained. And that writs of injunction in due form of law issue against the said defendants, in accordance with the terms of this order. And that the returning order heretofore issued and allowed in this cause continue in full force and effect until the court shall otherwise order. "And in order that the evidence relating to said election maybe perpetuated and pre- served, that it may be of avail upon the hearing of this cause, and in any cause which the said complainant may hereafter be compelled to institute and prosecute to test or deter- mine his right to the office of governor of said Staf e, and in order that public inconven- ience may not result therefrom, it is further ordered that the said Henry C. Warmoth do forthwith and without delay deliver unto the said returning officers, John Lynch, George E. Bovee, Jacob Hawkins, and James Longstreet, each and every paper, docu- ment, affidavit, tally-sheet, list, sworn statement, certificate, letter, communication, or proof which he has or may have in his possession, or which may hereafter come into his possession from any supervisor or assistant supervisor of registration or election, or any officer or person, commissioner or commissioners, in any manner concerned in the con- duct, control, management, or direction of said election, held on the 4th day of Novem- ber, A. D. 1&72, in any manner relating to said election, or any voting or ballots cast at said election or in any manner relating thereto, in order that they may consider, canvass, and make due return thereof, as required by law; and when the same are no longer re- quired for the purpose of said caiivass, it is ordered that the said defendant, H. C. War- moth, do thereafter immediately file and deposit the same with the clerk of this court, there to remain until true, accurate, and complete attested copies thereof be made by the clerk, subject to the direction of the court. "Injunction. — Issued December 6, 1873. "William Pitt Kellogg vs. No. 6830. "Heney C. Waemoth, Jack Whaeton, Frank H. Hatch, Durant Da Ponte, John McEnery, and the New Orleans Eepublican Printing Company. "Circuit court of the United States, fifth circuit and district of Louisiana. "The President of the United States, greeting: ' ' Whereas it has been represented to us in our said circuit court on the part of William P. Kellogg, by his bill ol' complaint lately exhibited against you and each of y,ou, touch- in'' certain matters and things thetein set forth: '*' Now thereforSj in consideration of the premises and of the allegations in said hill 444 SENATE ELECTION CASES. contained, you, the said above-named defendants, your attorneys and each of you, are hereby commanded and strictly enjoined under the penalty of the law that you abso- lutely refrain and desist during the pendency of this cause, until the further order of this court, from in any manner, either directly or indirectly, considering or pretending to consider or canyass any statement, certificate, or return of any supervisor or assistant supervisor of registration, or any ofScer having any duties to perform about, or concern- ing an election held on the 4th day of November, 1872, in the State of Louisiana, or re- lating to any votes or ballots cast. at said election, except in the presence of John Lynch, Jacoij Hawkins, James tongstreet, and George E. Bovee, a board of returning officers for said election, or from submitting Or allowing to be submitted, or from aiding or assisting in the submission to the said defendants, Prank H. Hatch, Jack Wharton, Durant Da Ponte, or any other person or persons whatsoever other than the said Hawkins, Bovee, Lynch, and Longstreet, any paper, document, affidavit, statement of votes, return of offi- cers of election, or other proof in any manner relating to said election, and from allowing any other person or persons whatsoever other than those in this order excepted, whether pretending to act as returning officers, or in any other capacity, to inspect, consider, have access to, canvass, or tamper with any paper, document, affidavit, statement of votes, re- turn, or written proof relating to said election, or to the fairness and correctness thereof,, that may have heretofore or may hereafter come into his hands or possession, and which by law should properly be laid before, submitted to, or considered by such returning officer^ of election in making a canyass thereof; and that the said defendant, H. C. Wai- moth, be further enjoined and inhibited from altering, suppressing, mutilating, destroy- ing, or secreting any such document, proof, or paper. "And that he further desist and be enjoined from in any manner interfering with, obstructing, or hindering the said Lynch, Longstreet, Bovee, and Hawkins, or either of them, from full and complete access to, as well as custody of, such documents, proof, r r paper. "And that he fvirther desist and be enjoined from in any manner interfering with, obstructing, or hindering the said Lynch, Longstreet, Bovee, and Hawkins, or either of them, from full and complete access to, as well as custody of, such documents, papers, and proofs relating to said election as he may or shall have in his possession, custody, or control, or as they shall or may demand,, either by refusing to deliver such documents or proofs to them, or either of them, or by any suit or proceeding instituted with the inten,t to hinder, delay, or obstruct them in the performance of their duty as returning officers; and that he be further restrained and enjoined from issuing any commissions to any persons based upon any calculation, deduction, or pretended canvass of ballots cast at said election, or make, publish, sign, or deposit in the office of the secretary of state or in any other public office, or cause to be so deposited, any document, statement of persons elected to any offices or positions of trust at said election, and from giving any effisct to the same, if already filed and deposited, unless the same be with the concurrent action and lawfully-given consent of the said Lynch, Hawkins, Bovee, and Longstreet, , or a majority thereof, or of a sufficient number of them to constitute a majority of a board of returning officers. "And it is further ordered that the said defendants. Jack Wh'arton, Frank H. Hatch, Durant Da Ponte, and the New Orleans Republican Printing Company, until the final hearing of this cause, or until the further or^er of the court, be severally and respectively enjoined and restrained to the same extent, effect, and manner as said complainant has in his bill of complaint prayed they may severally and respectively be restrained. "And that writs of injunction in due form of law issue agaiiist the said defendants in accordance with the terms of this order. "And that the restraining order heretofore issued and allowed in this cause continue in full force and effect until the court shall otherwise order. "Witness the Honorable Salmon P. Chase, Chief Justice of the Supreme Court of the United States, at the city of New Orleans, this 6th dav of December, in the year of our Lord 1872. "[seal.] F. a. WOOLFLEY, Cleric. "MarsJial's return. "Received December 7, 1872, by the Ugited States marshal, and on the same day, month, and year served the within-named persons with a copy of this injunction, as fol- lows: On H. C. Warmoth, by handing the same to him in person at tlie Saint Charles Hotel, in this city; Jack Wharton, same day, month, and year, served the within injunc- tion by handing the same to him in person at the Saint Charles Hotel, in this city; on Durant Da Ponte, same day, month, and year, by handing the same to him in person in this city; on Frank H. Hatch, same day, month, and year, by handing the same to him in person in this city; on the New Orleans Republican', December 9, 1872, by handing the same to W. R. Fish, president of said paper. "C. R. STEELE, "Deputy United States Marshal." TNE LOUISIANA CASES, 1873-80. 445 It is somewhat remarkable that in this opinion the judge makes no allusion to the fact that the State-house was then in possession of Federal troops, under an order issued by him, out of court, the night before. The opinion materially misstates the allegations of the bill, and wholly ignores the fact that, under the act of November 20, the governor had appointed anew canvassing board which had in fact canvassed the votes ; of all which he was aware, because the proclamation of the governor officially promulgating these facts was embodied in the order for seizing the State-house, made by the judge the night before. The judge also declares that about four thousand affidavits sustain the aver- ments of the bil'l. Your committee have examined many of these affidavits, and it is admitted that none of them contain the statement that right of registration or right of voting was denied on account of race, color, or previous condition of servitude. But in this opinion he disposes of the act of November 20 in a remarkable way. He seems to admit its validity, but seems also determined that it shall not take effect at an inconveniently early date. He admits that it repealed all former election laws, and cov- ered the whole subject of elections; but from this he draws two singular conclusions: First, that inasmuch as the act of November 20 repealed all former election laws, all that had been done under such repealed laws was void; and second, to avoid this diffi- culty, which he says at first startled him, that it was his duty to continue the old laws in force until the old boards could have a reasonable opportunity to complete all the business before them. One of two things is certain: The governor's approval of the new election law on the 20th of November gave»it effect on that day, or it did not. Assuming that the approval on that day was regular, the new law absolutely repealed all the laws under which the Warmoth board and the Lynch board were pretending to act, and, of course, abolished both boards without regard to the question which was the legal one. All that had been . done in the election of November, 1872, in pursuance of the old laws — that is, the regis- tration, voting, and returns — was as valid after the act of November 20 as before. If the canvass had been made by the proper board under the old law, and in ?ill things completed, the rights of parties based upon that canvass would not have been affected by the repeal of the laws. But the act of November 20, taking effect after the returns ■ were made, and before they were canvassed, transferred the duty of canvassing to the nevif board created by the act. Congress, a year or two ago, passed an act creating a new judicial district in the State of Wisconsin, carved out of the territory of the then existing district. When the President signed the bill, the circuit court for the old district was in session, and in the midst of a jury-trial, in that part of the State which the act erected into a new district. What would have been said if the court had determined not to regard the act of Congress nntU that trial could be completed? The court stopped, and the trial fell. Acts have fre- quently been passed abolishing courts. It n^ver was pretended that the abolished court could proceed and dispose of pending causes. If the act abolishing a court transfers its jurisdiction to another court, or creates a new court in its stead, the new court assumes jurisdiction and proceeds with the causes, and orders and injunctions granted by the old court are valid in the new. A few years since, on admitting one of the new States, by which the Territorial courts were abolished. Congress, by inadvertence, omitted to provide for pending causes in those courts; and, after a suspension of jurisdiction for a year or more. Congress passed an act transferring those causes which were of Federal cognizance to the courts of the Union, and the Supreme Court held it valid. In the opinion of your committee there can be no doubt — conceding the validity of the act of November 20 — that it transferred the duty of canvassing the returns of the last election to the board to be elected under the provisions of the act. The act provided for such election by the senate, and, taking effect in the vacation of the legislature, created offices to be filled thereafter by the- senate. This is what is styled in that State an origi- nal vacancy, which, happening in the vacation of the legislature, the governor is author- ized to fill by appointment; and it is said that the courts of that State have repeatedly recognized the right of the governor ,to mVike such appointments. Viewed in' any light in which your committee can consider them, the orders and in- junctions made and granted by Judge Durell in this cause are most reprehensible, erro- neous in point of law, and are wholly void for want of jurisdiction; and your committee must express their sorrow and humiliation that a judge of the United States should have - proceeded in such flagrant disregard of his duty, and have so far overstepped the limits of Federal jurisdiction. After the foregoing decision was made by Judge Durell, Armstead filed a bill in the eighth district court against the members of the Lynch board, and obtained an inj unction commanding them to make no canvass of the November election, except upon the re- turns made in pursuance of law. This injunction in no way conflicted with the decision 446 SENATE ELECTION CASES. of Judge Durell ; for, conceding Lynch that the board was, notwithstanding the repeal of the tew creating it, a valid board, it cannot be doubted that the courts of the State' might restrain that board irom canvassing any but the legal returns of the election. A writ of certiorari was issued by the Federal court in this case, which was disregarded by the State court. No subsequent proceedings were had in the Federal court upon said writ, and the inj unction remains in full force. On the 6th of December, 1872, the Lynch board — Bovee (who was then acting as secre- tary of state in place of Herron), Lynch, Longstreet, and Hawkins — pretended to have I canvassed the returns of the election, and certified to the secretary of state that Kellpgg had been elected governor; Antoine, lieutenant-governor; Clinton, auditor; Field, attor- ney-general; Brown, superintendent of education, and Deslondes, secretary of state; and also certified a list of persons whom they had determined to be elected to the legislature. There is nothing iu all the comedy of blunders and frauds under consideration more indefensible than the pretended canvass of this board. The following are some of the objections to the validity of their proceedings: 1. The board had been abolished by the act of November 20. 2. The board was under valid and existing injunctions restraining it from acting at all, and an injunction in the Armstead case restraining it from making any canvass not based upon the official returns of the election. 3. Conceding the board was in existence, and had full authority to canvass the returns; it had no returns to canvass. The returns from the parishes had been made, under the law of 1870, to the governor, and not one of them was befere the Lynch board. • It was testified before your committee by Mr. Bovee himself, who participated in this canvass by the Lynch board, that they were determined to have a republican legisla- ture, and made their canvass to that end. The testimony abundantly establishes the fraudulent character of their canvass. In some eases they had what were supposed to- be copies of the original returns, in other oases they had nothing but newspaper state- ments, and in other cases, where they had nothing whatever to act upon, they made an estimate based upon their knowledge of the political complexion of the parish, of wliat the vote ought to have been. They also counted a large number of affidavits purporting to be sworn to by voters who had been wrongfully denied registration or the right to vote, many of which affidavits they must have known to be forgeries. It was testified by one witness that he ibrged over a thousand affidavits, and delivered them to the Lynch board while it was in session. It is quite unnecessary to waste time in considering this part of the case, for no person can examine the testimony ever so cursorily without see- ing that this pretended canvass had no semblance of integrity. But it has been claimed before your committee that a decision of the supreme court of Louisiana, rendered since this investigation commenced, has determined that the Lynch board was the legal returning board at the time it pretended to canvass the votes; and it is urged that a wholesome regard for the rights of the State precludes the Senate fi-om investigating this subject back of that decision; that the canvassers were a board of officers created by the State law, and that the decision of the supreme court having determined that the Lynch board was the legal board the United States is esstopped by that decision, and the canvass made by the board. To this there are three answers: First. The supreme court, in the case referred to, is understood not to have had any testimony before it showing the character of the proceedings by the Lyiich board, which testimony is before your committee very fully. Fraud vitiates everything, and it is cer- tain that no court, upon the testimony before your committee, could hold the canvass by that board to be valid. Second. In the opinion of your committee the supreme court had no jurisdiction of the pase in.which they made the decision. The judgments of every court, the most exalted in character, are absolutely void if rendered without jurisdiction. But this point will be considered more fully hereafter. Third. But for the interference of Judge Durell in the matter of this State election, a matter wholly beyond his jurisdiction, the McEnery government would to-day have been the de facto government of the State. Judge Durell interposed the Army of the United States between the people of Louisiana and the only government which has the semblance of regularity, and the result of this has been to establish the Kellogg govern- ment, so far as that State now has any government. For the United States to interfere in a State election, and, by the employment of troops, set up a governor and legisla- ture without a shadow of right, and then to refuse redress of the wrong, upon the ground that to grant relief would be interfering with the rights of the State, is a propositiou difficult to utter with a grave countenance. Besides, it is impossible to determine to what extent the supreme court may have been influenced in rendering this decision by the factthatvthe Kellogg government, the creation of the Lynch board, had already been established, and the expectation that it would be sustained by Federal authority. THE LOUISIANA CASESj 1873-80. 447 But so mucli stress is laid upon this decision of the supreme court that it merits a more- particular notice, and we shall examine it with a view to determine whether the court v had jurisdiction. It is said that the supreme court of a State is the sole judge of its jurisdiction under State laws, and that the supreme court here expressly decided that it had jurisdiction of this cause. Every judgment implies an assertion of jurisdiction, but it is well settled that no judgment of any court has validity when it is shown that it was rendered without jurisdiction. The Constitution of the United States declares that in each State full faith and credit shall be given to the records and judicial proceedings of every other State. And yet it is well settled that when the record of a judgment ren- dered by the court of another State is produced, inquiry may be made as to the jurisdic- tion of the court to render such judgment, and that, too, although the court rendering: the judgment may have expressly asserted its jurisdiction. Whoever presents the record of any judicial proceeding, and claims for it conclusive effect, asserts that the court had jurisdiction, and if it can be shown that such jurisdiction did not exist the paper is no- record. Now, to examine the decision in question with reference to jurisdiction: The suit was commenced in the eighth district court of New Orleans, by the Lynch board against theWannoth board, on the 14th of November, 1872, under the "intrusioa act," for the purpose of determining which was the legal board. This suit was anal- ogous to a proceeding by quo warranto at the common law. The only question involved — the entire subject-matter of the suit — was whether Lynch and the other members of that board, or Warmoth and the other members of his board, were authorized to act as State- canvassers. The plaintiffs averred themselves to be the legal members of the board, and that the defendants had intruded into their offices. This was the only question that could be settled by that proceeding. On the 19th November the court decided in favor of the plaintiffi, the Lynch board. On the 21st Noveiriber motion for new trial was made, and was set for hearing on the 25th November. The hearing of the motion was on that day postponed, and was finally hdd, and the motion granted on the 3d of December; and the suit was dismissed upon th& ground that the act of November 20 repealed 'all former election laws, and abolished th& office. By the constitution, article 74, the appellate power of the supreme court extends only to cases "where the matter in dispute shall exceed $500." It is well settled by adjudications that where an office is in dispute the amount in- volved is determined by the amount of salary attached to the office. In this case the board had no salary. Therefore the Lynch board could not appeal from the judgment dismissing the suit. On the .19th day of December, A. P. Field, a stranger to the cause, presented his peiti- tion for intervention and appeal. His petition states that he was elected attorney-general at the November election, 1872, and that it had been so declared by the Lynch board, and that he had been duly com- missioned; that he was interested in this case, for that the plaintiffs were legal returning officers, and had returned that he had been duly elected ; and that the judgment in said case, against the plaintiffs therein, ' ' j eopardizes the f)osition of your petitioner in his said office, whereby your petitioner has an interest in having such judgment reversed and set aside;" and that he had an interest in this case exceeding $500, the salary of attorney- general being $5,000 per aimum. The petitioner prayed an appeal to the supreme court, which was granted. In the opinion of the majority of the supreme court it is attempted to be shown that the Lynch board might have appealed from the judgment dismissing their suit, upon the ground that, althou§i it did not involve the amount of $500, pecuniary interest, it was very important to the people of the State. The theory that, although a case involves no pecuniary amount, it may, from its magnificence or public importance, be cognizable by a court whose jurisdiction is, by the constitution, limited to cases involving $500, is new to your committee; but, conceding its correctness, its materiality is not perceived, be- cause the Lynch board did not appeal. We have careftilly examined the opinions of the majority of the court, and the cases cited, and aW the dissenting opinions of Judge Wyly and Judge Kennard, with the cases referred to by them. We are of opinion that the dissenting opinions of Wyly and Kennard declare the true principles of law applicable to this subject, and we adopt the opinion of Judge Wyly as a part of this report: Opinion of Judge Wyly. "State ex rel. Attorney-General et al. vs. Jack Wharton et al. Wyly, judge, dissent- ing. The judgment of a court without jurisdiction rations materise is a nullity so absolute ' 448 SENATE ELECTION CASES. it need not bp pronounced. The court will notice the want of jurisdiction ex propria motu. " It is well settled.that an intervention is not allowable where the party seeking to intervene would have no separate cause of action against either or both of the litigants, •or where he has no claim to the immediate object of the litigation. "The immediate object of the litigation in the case before us is to' determine the title "to the offices of the returning board of election, under act No. 100 of the acts of 1870 "The controversy is between the relators and the defendants for these offices. "A. P. Field, who intervenes and brings up this appeal, does not claim the offices in .dispute. He holds the office of attorney-general, and as neither the relators nor the de- fendants set up a claim to his office, or attempt in any manner to impede the adminis- tration thereof, he has no cause of action against either of them. ' ' He, therefore, has no right to intervene, because the law will not allow a party to thrust himself into a litigation hcwould be prohibited from instituting for himself. The •object of interpleading is to abridge litigation, and avoid the multiplicity of suits. Having no cause of action against either of tie litigants, and not claiming the offices in dispute, how can A. P. Field interplead, and, by appealing, protract a vexatious litiga- tion dropped by the original parties? " Such pleading is not allowable in ordinary suits; but this is a proceeding under the • intrusion act to determine whether the relators or the defendants are entitled to the offices of the returning board of election under the act of 1870. ' ' The law provides that suits of this character must be brought in the name of the State, on the relation of the district attorney or the attorney-general, against the party accused of intruding into or unlawfully holding an office; that the name bf the person claiming to be rightfully entitled to said office may be joined as plaintiff with the State; and that when the intrusion is made apparent the court may decide the defendant to be an intruder, eiect him from office, and order that the person joined with the State as plaintiff may be inducted into office. (Acts of 1^68, pages 71 and 199.) "No provision is made for an intervention in a suit of this kind, and in my opinion it is not allowable. If a controversy for ascertain office be settled improperly under a proceeding of this character, and the person inducted into office is not entitled to it, as against a third party, who was not joined as plaintiff with the State, the rights of such party are in no manner impaired. He can by mandamus if necessary compel the dis- trict attorney or the attorney-general to institute in his behalf a proceeding in the name •of the State, under the intrusion act, and have his title to the office established and the previously successful litigant ejected therefrom. After the time for contesting the elec- tion has passed, the only suit to establish title to office that can be brought is a suit under the intrusion act, and that, as before remarked, must be brought in the name of the State. The State, as before remarked by this court, must take the initiative; no one can litigate for office under that statute in his own name. And if a person cannot in his own name bring an action for the office be claims, how can he accomplish the same ob- ject by filing a petition of intervention in his own name, setting up his separ.ite demand? "As I understand the intrusion law, no one will be allowed to demand an office in this State in a proceeding in his own name, whether he pleads directly in a separate .action or whether he interpleads in an action between other parties. Whenever he sees fit to set up his demand for an office the statutes to which I have referred prescribe the precise form or mode of procedure in which he must bring that demand in order that the court may decide the title to the office. ' "If the State under the intrusion law must be the prominent litigant, and no demand for office can be set up except in the name of the State, how can there be an interven- tion ? Can this State intervene in her own suit? Can the State, ^uing for A, set up a separate demand in her own suit in behalf of B? Can the same party be both plaintiff and intervener in the same suit ? Such a proposition to a legal mind is utterly absurd. But then, how are the rights of several persons claiming a particular office to. be deter- mined without numerous suits, which the law abhors? Tne answer is plain and simple. ' " It is found in section 9 of the intrusion law, being act No. 58 of the acts of 1868. It is in these words: 'That where several persons claim to be entitled to the same office or franchise one action may be brought against all such persons in the same action, in order to try their respective rights to such office or franchise. ' "Here, then, to simplify pleading and to settle conflicting titles to office, the State las enacted a law by which she can in her own name in one action sue all the claimants to the office in dispute, and in the same action ' try their respective rights to such office or franchise. ' ' ' From the very language of the law it is apparent that no interpleading was contem- ' plated by the lawgiver. And, indeed, under the statute it fcould not be done, because, as before observed, the State alone can bring the suit, and she cannot in the same action occupy two contradictory positions, that of plaintiff, the prominent litigant, and that ot THE LOUISIANA CASES, 1873-80. 449 intervener, a third party, a stranger to the suit. Is it doubted that the State is the real litigant in suits under the intrusion law? I point to the State va. Krieder, 21 An., 482, and numerous other decisions wherein this court has so olten affirmed it, and I refer to the statute i^elf. " It is well settled that in a contest for office the pecuniary interest involved is the amount of the salary. "In the suit before us there is no salary at all. Consequently, as hetween the orig- inal parties, the matter in dispute does not exceed $500, and this court is without juris- tion rations materia. To ascertain the jurisdiction of the court it is idle to discuss general principles or to cite the adjudications of the Supreme Court of the United States, because it does not spring from such sources. The jurisdiction of this court is limited and defined in precise terms in the constitution of this State, the instrument creating it, and beyond these limitations we cannot go without usurpation. "This court has only appellate jurisdiction, ' which shall extend to all caaes when the matter in dispute shall exceed 1500.' * * * (Article 74, constitution of 1868.) "But the intervenor and appellant contends that as his salary of attorney-general is $5,000 he has ii pecuniary interest in this litigation exceeding $500, and therefore the court as to him has jurisdiction. For argument let us assume that it is so. We then have no anomaly of a jurisdiction as to one litigant, and no jurisdiction as to t6e others, and positively no jurisdiction as to the offices in controversy, the immediate object in dispute, and of the litigation. "The matter in dispute between A and B, the very object of their litigation, has a pecuniary value less than $500; neither can appeal to this court for want of jurisdiction; the difficulty caii-be obviated-; the judgment below can be reversed; all that is necessary is for a third party to aver that as he owns some other object worth $500 he has a pecu- niary interest in the controversy exceeding $500 and therefore can intervene and appeal. If the doctrine contended for be true, all the inferior courts of this State, including justices of the peace, may in the same manner be brought before this court for revision. Such a proposition is unreasonable and absurd. In my judgment the title to an office the salary of which is less than $500 cannot be determined by this court, for want of juris- diction ralione materise, it matters not who is the appellant, and it matters not how many affidavits are filed setting up a pecuniary interest exceeding the amount of the salary. A third party appealing from a judgment must show a direct pecuniary inter- est in the subject-matter of the suit. (Attorney-general vs. Markey, Kaiser, 21 Ann., 743; 1 N. S., 308; 4 N. S,, 342; 2 R., 391.) The subject-matter of this suit is the title ' to the offices of the returning boards of election under' act No. 100 of the acts of 1870, to which offices there is no salary. Therefore neither the original litigants nor the in- tervenor has a direct pecuniary interest in the subject-matter of this suit and therefore cahnot appeal, because this court is without jurisdiction ratione inaterix. It is therefore my judgmentthat if an intervention in a case like this were allowable, and if a third party could. intervene and appeal from a judgment not appealable by the original litigants, because the matter in dispute is less than $500, the intervenor, A. P. Field, has not shown a direct pecuniary interest in this suit sufficient to entitle him to the appeal or sufficient to give this court jurisdiction. " If he had been joined as plaintiff with the State in this suit, he could not appeal, because the subject-matter of the suit is less than $500. The argument, however, is urged that Field has a direct pecuniary interest in this case, because, as the time for.con- testing elections has passed (more than ten days after the election having elapsed), he has no other way to vindicate his title to the office of attorney-general. That if the board by whom he was returned as elected was not the lawful returning board, then his title to the office has no basis upon which to rest. Consequently, his entire salary as attor- ney-general is involved in this controversy between the two returning boards. "The answer to this is twofold: First, the controversy between these returning boards in no way prevented him from instituting, within proper time, the usual proceedings to contest the election. Second, his title to the office of attorney-general cannot now be determined as against H. N. Ogden, his opponent at the election, because the latter is not a party to these proceedings. Besides, in a controversy for one office the title to another office (separate and distinct) cannot be determined. A proceeding under the "intrusion act" can only determine the title to the office in dispute, and no one can become a party to that proceeding who does not claim the immediate object of the litigation. If A. P. Field, who was returned as elected attorney-general, can intervene in this controversy, every candidate for. office at the late election, every person expecting an office if his party prevails, and every person incidentally or remotely interested in thesettlement of the issue may intervene, and the rights of everybody, the titles to all the offices in the State, may at once be determined, notwithstanding the opponents of .these various intervenors were not cited, and were not parties to the suit between these returning boards. An argument that leads to such monstrous absurdities ought not to be accepted by this court as correct. In S E 29 450 SENATE ELECTION CASES. State vs. Mason et at, 149, 506, A., where parties not claiming the offices of mayor and coancilmen of Carrollton contested the electi6n of the defendants to said offices, fkis court said: ' It appears reasonahle that no one but a person pretending to have a right to an ofiSoe should be permitted to test the right of the incumbent to that pffice.i? In Voisin and others vs. Leclje et al., 23 A., 25, a similar case, this doctrine was af&rmed by this court,, the identical language being adopted by Chief- Justice Ludeling, the organ of the court. In State ex rel. Sullivan et al. us. -Mount ei al. , 21 A. , 755, where the controversy was between two boards of school directors, and where Kendall, the secretary of one of the boards, appealed, claiming that as his salary was |1,800 he had a pecuniary interest in the controversy exceeding |)500, this' court held that ' in a controversy for office under the intrusion act ' a third, party, not holding or claiming the office in dispute, cannot appeal from the j udgment of the court a qua. There the board that appointed Kendall secretary was unsuccessful in the controversy with tie other board of school directors, and could not appeal because of the want of pecuniary interest (there being no salary allowed the schooldirectorsof the parish of Orleans). Kendall, the secretary, appealed, andcontended that, unless his right to a|)peal was maintained, he would lose his office, affording him a salary of |1,800 per annum; that the very basis of his office rested upon the reversal of the judgment in the controversy between these two boards of school directors The. court held that as he did not claim the offices in dispute (the immediate object of the lit-' igation), Kendall could not 'appeal from the judgment of the court a qua.' Here neither of the returning boards of election has appealed from the judgment in the con- troversy between them, because, having no salary, there is no pecuniary interest involved as between them. A. P. Field, claiming to be returned as attorney-general by one of these boards, whose suit under the ' intrusion act ' was dismissed, has appealed, and he contends that unless that judgment is reversed and the board which returned him as elected attorneyrgeneral is recognized by this court and declared the lawful board, his title to that office has no basis upon which to rest. The case presented by him is iden- tical in principle with that presented by Kendall, and should have the same solution. He is a third party, not claiming the offices in controversy, and cannot appeal from the judgment of the court a qua, 21 A., 735. The appellant cites the case of Byerly vs. Judge of the Eighth District Court, 23 A., 768, to show that a third party having an ap- pealable interest may appeal. That case is not like the one before the court. Byerly showed a direct pecuniary interest in the matter in dispute. "I deem it proper to.remark, however, that there is a feature of that case that I do not approve of. I was not present at the hearing, and took no part in its decision. What- ever comfort it may give the appellant, however, is utterly annihilated in the subsequent final decision of that same case reported in 24 A., 115. "The case in 12 A., 48, cited to show that a third party may appeal, is wholly unlike the case before the court. There the property of a third party had been seized, and the appeal was from the judgment dissolving his injunction.. It being a.separate demand, C. P., 398, and the value of the property being sufficient to give this court jurisdiction, there was no error in maintaining the appeal. " There are other grounds for dismissing the appeal, which I deem it unnecessary to notice, because, to my mind, the argument which I have endeavored to make fully maintains the exception of the defendants that A. P. Field has no right to take this ap- peal. " Believing that the case is notvidthin the jurisdiction of the court and that the decree of a court without jurisdiction, ratione materise, is an absolute nullity, I hardly think it necessary to enter upon an elaborate discussion of the issues presented for adjudication upon the merits. I will state, however, some of the conclusions forced upon my mind from a careful consideration of these questions. " I believe the governor had the right to sign the new election law on the 20th of November, 1872; that it became operative from the moment of the signing, and that it entirely repealed the law creating the offices in controversy, to wit, act No. 100 of the acts of 1870. "That the governor has the right in this State to sign and approve laws after the session of the legislature has ended has often been decided by this court; indeed, I regard the jurisprudence settled on this point. But the appellant contends with some show of plausibility that when this act was signed (the 20th of November, 1872) the legislature that enacted the law had passed out of existence (the terms of most all the members of the general assembly having expired); that with the cessation of their terms ended all of their uniinished business, so that the governor could not complete by his approval and signature a statute after its authors had ceased to exist. "This argument is ingenious but unsound. The fallacy lies in supfiosing that the law-making power had ceased to .exist. While our structure of government remains neither of the co-ordinate branches thereof can cea.se to exist, although the persons in- trusted by the people to administer them often discoiitinue to do so because of death, resignation, or the lapse' of the terms for which these public fanctiohs were chosen. THE LOUISIANA CASES, 1873-80. 451 "In this State the effect of a repealing law is not always a question of construction. When a repealing law like any other law ' is clear and free from ambiguity, the letter of it is not to be disregarded under pretext of pursuing its spirit ' (C. C, 13); "It is only when the law is dubious in its language that its meaning must be sought by construction (C. C, 16); "In my opinion the election law approved 20th November, 1873, entirely repealed the law of 1870. It devised a new and different way of canvassing the votes and mak- ing the returns, and it entirely abolished tlie offices involved in this controversy. How the incumbents of offices that have been abolished can pretend to hold over under arti- cle 122 of the constitution till their successors are inducted into office I cannot imagine. "How can there be an inducting of successors into offices that do not exist? "But great stress is laid on the case of Kreider, 21 A., 482, and it is insisted that the ruling in that case covers this one. I do not think so. The statute interpreted in that case differed very materially from the one now under examination. There the court held that the thirteenth section of the act of September 14, 1868, repealing the charter of Jefferson, approved March 8, 1867, did not abolish the office of the corporation. This clause only repealed the old charter in so far as its provisions were not incorporated in the new charter. "The title of that act was 'An aqt for revising and amending the charter of the city of Jefferson.' "The title-of the act only proposed to 'revise and amend ' the charter. "Under cover of such a title the old act could not be abolished, and any clause to that effect would be repugnant to article 114 of the constitution requiring the objects of every statute to be expressed in the title thereof. In the Kreider case it was held that the ' clause only repealed the old charter in so far as its provisions were not incorporated in the new charter. ' "The provisions of that act did not abolish the offices of the corporation , but continued them. "In the statute before us the officers of returning boards in the old law are not carried over and incorporated in it. Therefore these offices are abolished under the authority of Kreider's case, which has been produced to show the reverse. " In my judgment the act approved 20th November, 1872, is not mere revisory legis- lation; but whether it is or not is of no consequence, because the offices claimed by the relators under the old law are abolished, if not directly at least by implication, because the continuing of said offices is not provided for in the new law, and it is inconsistent therewith. "The provision of act No. 100 of the acts of 1870, creating these offices and designat- ing the duties to be performed therein, is in conflict with the provisions of the act of 20th November, 1872, and is therefore repealed. "This was the view taken by this cOurt in the analogous case of the State ex rel. Mar- tien m. Lavigne (23 A., Ill); "Here, to my mind, another difficulty arises. What judicial effect can the decision have? What legal right shall we order to be executed? A. P. Field cannot be put into the offices in controversy, because he don't claim them. "We cannot eject the defendants and induct into these offices the relators, because the plaintiffs have not appealed from the judgment dismissing their suit. (1 N. S. , 308. ) Besides, the defendants are not claiming the offices, but contend that theyras well as the plaintiffs, are not out of office by reason of theapproval of the election law of 1872. "Furthermore, if the approval of said law is not valid the relators have nothing to contend for, having canvassed and made their returns. Notwithstanding the suit, they have exhausted the powers confided to them, and they are now functus officio— th&j are no longer excluded from office. There are other questiods which I deem it unnecessary to discuss. , . , , ii. ' ' With all due respect for the views of my learned associates, who compose the quorum deciding this case, I feel constrained to differ with them in the conclusion to which they have arrived, because I believe their decision is not in harmony with the analogies of our law and the numerous adjudications of ourselves and our predecessors. I believe that it practically overrules many important principles and points of practice heretofore deemed settled, and that it is a new departure in the jurisprudence of our State. "For the reason stated, I feel constrained to dissent in this case." No man can be said to be aggrieved by a judgment unless he has some direct interest in it A man may be aggrieved in the sense of being distressed or afflicted at the defeat of his neighbor or friend, or because he thinks the judgment will have injurious effects upon public interests. But before he can intervene and appeal he must show that some right of his is injuriously affected by the judgment. In a suit by quo warranto against a person who had been for years acting as a judge of a court it would hardly be main- tained that every person who had recovered a judgment while the defendant had been 452 SENATE ELECTION CASES- , acting as judge could intervene and appeal from a judgment determining that the judge liad wrongfully exercised the ofSce. One reason is that a judgment rendered by a de facto judge is as valid between the parties as if rendered by a judge de jure. And in this suit the supreme court, although they declare that Field was entitled to an appeal, make no decision in his favor; donotdeclare that he is entitled 1o the ofiSce of attorney- general, and could not, for his opponent was not before the court; but reverse the judg- iicent below solely upon the ground that it was erroneous as to the Lynch board, who lind not appealed. We therefore dismiss the. further cousideratibn of this decision of the supreme court of the State with the further remark that if the jurisdiction of the supreme court were conceded their decision would not be conclusive against the United States in an inquiry like this, to ascertain if the State has a government. "We now proceed to consider another case pending before Judge Durell, in which, if possible, he has still more flagrantly transcended his jurisdiction. The act of Congress of May 31, 1S70, 16 Stat. L., 146, sec 23, provides: "That whenever any person shall be defeated or deprived of his election to any oflSce, except elector of President or Vice-President, Eepresentative, or Delegate in Congress, or member of a State legislature, by reason of the denial to any citizen or citizens who shall oifer to vote of the right to vote on account of race, color, or previous condition of servitude," such person may have his action in the Federal court, &c. On the 7th day 0|f December, 1872, C. C. Antoine, claiming that he had been elected lieutenant-governor at the election in November, 1872, filed his bill of complaint on thp equity side of the circuit court of the United States for the district of Louisiana, against the Warmoth board — ^Warmoth, Wharton, Hatch, and Da Ponte — against the holding- over clerk of the house of representatives, and the holding-over secretary of the senate; and against Y. A. Woodward, assistant secretary of state; against Penn, claiming to be lieutenant-governor; and against Armstead, claiming to be secretary of state; against Blanchard, state registrar of voters; against the metropolitan police of the city of New Orleans; against all the persons determined by the board composed of De Feriet and others, appointed under the act of November 20, to have been elected senatorsimd mem- bers, of the house of representatives: and against the De Feriet board. This bill contained, in substance, the allegations contained in the Kellogg bill, though more in detail; and set forth that secret and confidential instructions were issued to the State supervisors of registration to exclude the supervisors appointed by the United States from the canvass of State and parish officers; and to permit no person to vote who had been denied registration, unless they knew that he had been so denied; and that War- moth manipulated the election so as to defeat the complainant; excluding the votes given by colored citizens from the count, &c. ; the approval by the governor of the act of No- vember 20; the appointment of De Feriet and others, canvassers under the said act; that aid De Feriet board pretended to make a canvass, and that proclamation thereof was made, &c. ; that by law it was the duty of the secretary of state to transmit to Vigers, clerk of the house, and Merritt, secretary of the senate, a list of the persons elected to the legislature; they being the only persons competent to organize the legislature; that Wharton, as secretary of state, had furnished to the secretary of the senate the list of persons declared, by the De Feriet board to be elected, and that it was the intention of Merritt to organize the senate accordingly ; and' the same as to the house of representor tives; and that the legislature, if so organized, would deprive the complainant of his rights, &c. ; that Bovee is the lawful secretary of state, and Wharton has no right to said office; that the metropolitan police are acting in collusion and will aid the Jraudulent purpose, &c. The bill prays injunction against Warmoth, restraining him from interfering with the organization of the legislature on the 9th day of January, 1873, or on any future day, &c. ; and from aiding any person to a seat not certified by Bovee; and an injunction against the police from interfering, &c. ; and against the members of the legislature certified by the De Feriet board; and against Merritt, secretary of the senate, restraining him from placing on the roll any name not certified by Bovee; same as to the house of representa- tives against Bovee, restraining the clerk from receiving any returns except from the Lynch board. The prayer for relief is as follows: ' "And may it also please your honors to order and adjudge that the said defendant, H. C. Warmoth, within a period of time to be fixed by your honors, do make and deposit in this honorable court, in the office of the clerk thereof, full, true, and exact sworn copiep of each and every paper, document, affidavit, tally-sheet, list, sworn statement or certificate, or letter which he may have received, or may have come into his possession from any commissioner or commissioners, or any officer concerned in the control or man- agement of said election, or who had any duties to perform in connection therewith, and ftom all supervisors or assistant supervisors of election, in any manner relating to said election, in order that the same may be beyond the power of destruction by the said THE LOUISIANA CASES, 1873-80. 453 defendant, Warmoth, and his said confederates, and in order that the sanic may be saved to your orator as evidence to enable him to establish his right to the office as aforesaid in any judicial proceedings which he may be compelled to institute in this court to establish and vindicate the same, and that the same may be also preserved for use or proof in support of yoitr orator's bill in this behalf, and to establish his right to the relief by him herein and hereby prayed for; and that the said evidence, documents, &c., to be produced remain on file in this court, in order that thie same may be preservetl as evidence in any action which your orator may be required to institute in this court to establish his right to said office." The bill also contained prayer for process and for general relief. The court granted a rule to show cause, returnable on the 11th December, 1872, why injunctions pendente lite should not be allowed as prayed for, and granted restraining order in the mean time to the extent and effect prayed for in the bill; and for the pur- pose of explaining the extent and scope of the order directed the clerk to attach thereto a copy of the prayer for injunction, which order and copy attached are as lollows: "Circuit court of the United States in and for the district of Louisiana, in equity. "C. C. Antoine 6861. 'H. C. Waemoth et al. [no: L. J " Bestraining order. — Issued Deeemher 7, 1872. "Whereas the plaintiff herein has this day filed and exhibited his bill of complaint against the said defendant, H. C. Warmoth, and the other defendants named in said bill of complaint, and has therein prayed that rajxinctiona, pendente lite, issue against the defendants therein, and that a restraining order be also issued restraining the said de- fendants as prayed for in said bill from doing or permitting to be done the acts in said hill complained of: "Now, therefore, on motion of J. E. Beckwith and E. C. Billings, solicitors for com- plainant, it is ordered that the defendants named in said bill do show cause on the 11th day of December, 1872, why injunctions, pendente lite, should not be allowed as prayed for. It is further ordered that said defendants, each and every one of them, he, and arc hereby, commanded and restrained to the extent and effect as in said bill of complaint prayed [the clerk will attach to this order a copy of the prayer for injunction as set forth in said bill of complaint] until the hearing and determination of said rule for injunction and until the further order of the court in the premises. "E. H. BVRELL, Judge. "A true and correct copy of the original order on file in this cause. "F. A. WOOLFLEY, Clerl: ■■'Wherefore your orator humbly prays that your honor will grant unto him all just and proper relief in the premises; that you will allow and grant unto him the most gracious writ of injunction issued under the seal of this honorable court, dirgcted to the said defendant, Henry C. Warmoth, enjoining and restraining him from in any manner, - directly or indirectly, by himself or through any other officer of the State, city, or parish, or through any other person, from controlling or attempting to control, interfering with, or attempting to interfere with, the organization of either branch of this general assembly of the State of Louisiana, called to assemble on the 9th day of December, A. D. 1872, or that may be called to assemble at any future day, and from directly or indirectly, either by himself or through any other person, preventing any person claiming to be a member of said general assembly from having full and free ingress and egress to and from the place, building, and room of that branch of said general assembly of which he may claim to be a member, or from issuing any written or oral order or instruction, re- quest, or direction, calculated or designed to directly or indirectly control or interfere with the organization of either of the branches of said general assembly, or calculated or designed to prevent any person from having free access thereto, who claims to be a member thereof, and from doing any act, or from giving any order, direction, or making any request which may directly or indirectly prevent or hinder any person from being present and taking part in the organization of said senate, called to convene on the said 9th day of December, or at any future day, who may be returned as a member thereof by the board of returning officers, composed of the said Henry C. Warmoth, George E. Bovee James Longstreet, Jacob Hawkins, and John Lynch, and whose name shall also be transmitted by the said George E. Bovee, secretary of state, to Charles H. Iferritt, 454 SENATE ELECTION CASES. the secretary of the senate of the last general assembly, and placed by the said Merritt upon the roll of said senate, so to be convened, and from in any mannei", directly or in- directly, aiding or abetting any person Who is not so returned by said returning board as a member, ot said senate, so to be convened, and whose name is not so transmitted as a member elected to said senate, and is not so placed upon the roll of said senate, from participating in the organization of said senate, and from doing any act, or from giving any order, direction, or making any request which may directly or indirectly prevent or hinder any person from being present and taking part in the organization of said house, called to convene on the said 9th day of December, or that niay be called -to convene at any future day, who may be returned as a member thereof by the board of returning ofiioers, composed of the said Henry C. Warmoth, George E. Bovee, James Longstrcet, Jacob Hawkins, and John Lynch, and whose name shall also be transmitted by the said George E. Bovee, secretary of state, to William Vigers, .the secretary of the house of the last general assembly, and placed by the said WilUam Vigers upon the roll of said house so to be convened, and from in any manner directly or indirectly aiding or abetting any person who is not so returned by said returning board as a member of said house, so to be convened, and whose name is not so transinitted as a member elected to said house, and is not so placed upon the roll of said house, from participating in the organization of said house. "Except that the said Henry C Warmoth is not hereby prohibited from participating in the canvass and return of the members elected to the said branches of said general assembly, so to be convened, provided he do the same in conjunction with :iud in the presence of said George E. Bovee, James Longstreet, Jacob Hawkins, and John Lynch, but not otherwise. And that he further be enjoined and restrained from in any manner obstructing or hindering the said William Vigers, clerk of the house of representatives, or the said-secreta;ry of the senate, Charles H. Merritt, in the free and unobstructed dis- charge of their duties, or in full and complete obedience to the orders of this court, and from suspending, removing them, or either of them, from otfice, or appointing or ordering, or abetting any other person or persons to perform any act which by law or the orders of this court devolves on either the said Vigers, Merritt, or upon Geoi^e E. Bovee, secre- tary of state, and from recognizing any validity in any act done or performed by any other person or persons pretending to act in the office or capacity of either of said officers. "And that awrit of injunction mayalso issue, directed to A. S. Badger, chief of metro- politan police, and to each member of the board of the metropolitan police, and to the board of metropolitan police, enjoiningand restraiaingthem and each of them from inter- fering in any manner with the organization of either branch of the general assembly to be convened on the 9th of December, A. D. 1872, or at any time thereafter, except to preserve the peace, and to prevent no person from having access to either of the hallsof said houses who is certified by George E. Bovee as being a member-elect of the same. "And that writs of injunction also issue, directed to the said E. Booth, A. Voorhies, A. J. Lewis, B. F. Jonas, T. B. Stamps, D. S. Cage, R. C. White, T. C. Anderson, J. M. Thompson, E. S. Weber, A. S. Herron, Robert Woriall, O. H. Brewster, E. M. Graham, . J. W. McDonald, A. H. Leonard, C. J. C. Puckett, James G. White, J. F. Kelly, enjoin- ing and restraining them and each of them from participating in any manner in the or- ganization of the senate to be convened on the 9th day of December, A. D. 1872, or at any time thereafter, or froin doing any act or thing toward, in, or about the organization of said senate, either by casting a vote or otherwise, unless his name shall be and appear on the list of names of members of said senate transmitted to the secretary of the same by George E. Bovee, secretary of state, as having been elected thereto. "And that a writ of injunction also issue to the said J. .1. Mellon and James Timony, J. A. Shakespeare, J. A. Rice, J. J. Finney, E. H. McCaleb, Charlers Mont-aldOjW. B. Bar- rett, W. L. Stanford, T. B. Blanchard, jr., F. C. Zacharie, F. Fusiilier, V. 0. King, A. , Garidel, L. S. Roderiguez, John Barrow, John Delaney, William Stev-ens,W. C. Kinsella, C. Kummell, J. B. Eustis, J. McConnell,A. J. Dumont, E. L. Bowers, E. Riviere, P. Lan- dry, C. N; Lewis, E. B. Cox, Numa Vivos, T. J. Edwards. W. K. Johnston, T. L. Mills, T. Bynum, J. S. Gardere, J. L! Lobdel],W. S. Cockernara, W. H. Scaulan, L. P. Sandidge, J. C. Moncure, George L. Smith, J. Sella Martin, W. H. Kirkman, Thomas J. II amble, Paul Jones, George C. Bonham, Cain Sartain, Allen J. Davis, W. F. Morelaud, Thomas Price, David Young, George Washington, J. P. Elam, A. F. Stephensoi;, John Goir, James Laws, James W. Armstead, F. W. Norris, J. H. Hadnot, L. A. Sr.aer, J. IC. Cavannjuslii E. A. Hubin, William Kern, C. W. Lowell, J. D. Trahan, .John S. Billim, 0- Harang, T. G. Da- vidson, James R. McDowell, C. C. Davenport, E. L. Pier.son, W. A. Ponder, W. F. South- ard, D. Hill, H. Mahoney, J. P. Harris, L. B. Claiborne, L. Texada, John J. Swan, J. G. P. Hooe, E. W. Dewees, H. F. Viokers, J. F. Smith, R. V. Ducros, M. Hahn, D. K. Gor- man, Henry Demas, Benjamin R. Gantt, J. F. Little, E, D. Estilette, 1j. D. Pre-^eott, Vr Bochon, L. A. Martinet, James Cdstello, M. J. Foster, J. G. Tato, J. R. Stewart, J. S. Mathews, J. J. Booles, P. Fonteliu, J. E. Smart, A. C. Bickham, J. P. Schullz, William THE LOUISIANA CASES, 1873-80. 455 A. Strong, enjoining ami restraining tlieratind eacli of tliem from participating 1n any manner in the organization oJ' the house of representatives, to be convened on the 0th day of December, A. L). 1872, or at anytime thereafter, or from doing any act or thing toward, in, or about the organization of the same, either -by casting a vote or otherwise, unless his name shall be and appear on the list of names of members of said house transmitted to the clerk of the same by George E. Bovee, secretary of state, as having been elected to the same. "And that a writ of injunction may also issue, directed to Charles ,H. Merritt, secre- tary of the senate of the last general assembly, enjoining and restraining him from placing, causing, or suffering to be placed upon the roll of the senate to be convened on the 9th December, A. D. 1872, oi: at any time thereafter, or from placing, causing, or suf- fering to be placed upon any list of members- elect to said last mentioned senate, or from announcing, causing, or suffering to be announced, as a member elected to said last men- tioned senate, or from recognizing, or causing or suffering to be recognized, as a member elected to said last mentioned senate, or from in any manner designating, or causing, or suffering to be designated, as a member to the said last mentioned senate, prior or during the Organization thereof, any person whose name shall not be transmitted to him by George E. Bovee, the secretary of state, upon a list of the names of such persons as have been elected to the said last mentioned senate, and from in any manner acting upon any other list except the one so transmitted by the said George E. Bovee, in the organization of the last mentioned senate, and to disregard in said organization all other lists. "And that a writ of injunction may also issue directed to William Vigers, clerk of the house of representatives of the last general assembly, enjoining and restraining him from placing, causing or suffering to be placed, upon the roU of the house of representatives, to be convened on the 9th of December, A. D. 1872, or at any. time thereafter, or from placing, causing or suffering to be placed, upon any list of members elected to said last men- tioned house, or from announcing, causing or suffering to be announced, as a member elected to said last mentioned house of representatives, or from recognizing, or causing or suffering to be recognized, as a member elected to said last mentioned house of repre- sentatives, or from in any manner designating, or causing or suffering to be designated, as a member to the said last mentioned house, prior or during the organization thereof, any person whose name shall not be transmitted to him by George E. Bovee, the secre- tary of state, upon a list of the names of such' persons as have been elected to the said last mentioned house of representatives, and from in any manner acting upon any other list except the one so transmitted by the said George E. Bovee in the organization of the last inentioned house of representatives, and to disregard in said organization all other lists. "And that a writ of injunction also issue directed to saidGeorge E. Bovee, enjoining and -restraining him from receiving any return or returns of the election of any State oflS- cers or of the members of either branch of the general assembly of the State of Louisiana, excepting such returns as may be received by or filed in the oflSce of him as secretary of state from the board of returning of&cers, and a majority of the same, composed of Henry C. Warmoth, James Longstreet, and Jacob Hawkins, and John Lynch, and himself, and from delivering, causing, or suffering to be delivered to any speaker of the house of rep- resentatives any return except received and filed as above stated of any election what- ever, or frpm making, or causing or suffering to be made, any list of natnes of the mem- bers elected to either branch of the general assembly, except from and according to returns so received or filed, as above stated. "That a writ of injunction also issue directed to the said Jack Wharton and Samuel Armstead, and each of them, enjoining and restraining them and each of them from re- ceiving any returns of the elections held in the State of Louisiana on the first Monday of November last past, for members of the general assembly, or from transmitting to Will- iam Vigers, the clerk of the house of representatives, or to Charles H. Merritt, the sec- retary of the senate of the last general assembly, or to any other person, any list of names which is or purports to be a list of names of such persons as, or the name of any person who, according to any returns, shall have been, or shall be stated, or claimed, or assumed to have been, elected to either branch of the general assembly called to convene on the 9th day of December, A. D. 1872, or that may be called to convene at any future time, and from making any staitement or doing anything calculated or designed to furnish a basis for the organization of either of said branches of the said general assembly, or from delivering or interfering, conniving at, or aiding, or suffering any other person to deliver to the speaker of the house of representatives, or any other person, any returns of any election whatever. " And that writs of injunction may also issue directed to the said Thomas Isabelle, P. S. Wiltz, J. S. Taylor, J. E. Austin, and 6. de Feriet; also issue against the said H. C. Warmoth, Jack Wharton, Frank H. Hatch, and Durant Da Ponte, commanding them and each of them fo refrain and desist from pretending to act together as a board of re- 456 SENATE ELECTION CASES. turning oflScers or as returning officers of eleotionsj from canvassing or attempting to can- vass or consider any certificate, document, affidavit, return, statement of votes, or any paper whatsoever properly relating to said election, and from attempting to make- a canvass, declare, or publish any pretended deduction, calculation, statement, or proclama- tion based thereon, or pretended to be derived therefrom, in any way relating or pertain- ing to said election, held on the 4th day of November, 1872, or certifying to any candidate for office at said election, any certificate of election, or any statement of the result of said election tending to show any right to office in any person growing out of ballots cast i\t said election, and from meddling with, altering, suppressing, falsifying, obliterating, or destroying any document, paper, voucher, proof, statement of votes, or certificates relat- ing to said election. " " I hereby certify that the foregoing is a true and correct copy of the complainant's prayer for injunction in his bill of complaint in the cause of Csesar C. Antoine vs. Henry C. Warmoth et at. No. 6851 of the docket of the circuit court of the United States for the district of Louisiana, referred to and made a part of the subjoined restraining order. " [seal.] F. a. WOOLFLEY, Clerk. "January 3, 1873." '.' United States of America, circuit court of the United States,, fifth circuit and district of Louisiana. "Clerk's Office. " I, Francis A. Woolfley, clerk of the circuit court of the United States for the fifth circuit and district of Louisiana, do hereby certify that the foregoing pages contain and forma full, complete, true, and perfect transcript of the record and proceedings had, ex- cept entries from minutes of continuances, &c. , in the case of C. C. Antoine vs. H. C. Warmoth et aX., No. 6851 of the docket, so far as the same now remains of record or on file in said court. "Witness my hand and the seal of said court, at the city of New Orleans, this 3d day of January, A. D. 1873. ' ' [SEAL. ] F. A. WOOLFLEY, Clerk. ' ' Here was a restraining order, having the force of an injunction, issued for no purpose under heaven except to control the organization of the legislature and compel the seat- ing of those members who had been returned and certified to by the' Lynch board, and exclude those who had been certified by the De Feriet board. When we consider that the act of Congress under which this proceeding was instituted by express words excludes members of the State legislature from the right to maintain any proceedings in a Federal court to obtain their seats, even when they have been de- feated and deprived of their rights, because citizens have been denied the right to vote on account qf race, color, orprevious condition of servitude; and that the State-house washeld by Federal troops under the unlawful and void order of Judge Durell, hertinbeibre set forth, which order commanded the marshal to prevent "all unlawful assemblage therein under the guise or pretext of authority claimed by virtue of pretended canvass and re- turns made by said De Feriet board," we can comprehend the full force and effect of the additional restraining order in the Antoine case. It was claimed that section 15 of the act of Congress approved February 28, 1871, which provides " that tlje jurisdiction of the circuit courts of the United States shall ex- tend to all cases in law or equity arising under the provisions of this act, or the act hereby amended, ' ' had the effect to repeal the exception in regard to ' " members of a State legislature" in section 23 of the act of May 31, 1870. But we think this proposition cannot be maintained. The case of a member of a State legislature claiming his seat was not a case arising under the former act, because it was expressly excluded by that act. It was not a ca-se arising under the latter act, because there is no provision of that act applicable to such a case, or recognizing any purpose of Congress to extend the j urisdlction of circuit courts to the cases excepted in the twenty- third section of the original act. It must be borne in mind that if the fifteenth section of the latter act extended the jurisdiction of the circuit court over the election of mem- bers of a State legislature, it did so as to members of Congress, which would be clearly unconstitutional, because the Constitution makes each House of Congress the exclusive judge of the election, returns, and qualification of its own members. The constitution of every State of the Union contains similar provisions in regard to the houses of the legislature of the State. The intention of Congress to pass a law in violation of the ex- press provisions of the Constitution of the United States cannot be maintained unless that intention be fexpressed in words so plain as to admit of no other construction. There is no provision of the latter act compelling or justifying such a construction. On the con- , trary, remedies are given by the latter act which fully explain the purpose of that por- THE LOUISIANA CASES, 1873-80. 457 tion of section 15 above quoted, without holding it to he a repeal of the exceptions in section 23 of the former act. And if a member of a State legislature cannot maintain a suit in the Federal courts to secure his right to sit in the legislature, it can require no argument to show that the lieutenant-governor cannot maintain a suit in the Federal courts on behalf of a hundred such members. Indeed, it is impossible not to see that this bill was filed, and the restraining order thereon was issued, for the sole purpose of accomplishing, what no Federal court has the jurisdiction to do, _th& organization of a State legislature. And your committee cannot refrain from expressing their astonishment that any judge of the United States should thus unwarrantably have interfered with a State govern- ment, and know no language too strong to express their condemnation of such a pro- ceeding. It is the opinion of your committee that but for the unjustifiable interference gf Judge Durell, whose orders were executed by United States troops, the canvass made by the DeFeriet board, and promulgated by the governor, declaring McEnery to have been elected governor, &c., and also declaring who had been elected to the legislature, would have been acquiesced in by the people, and that government would have entered quietly upon the exercise of the sovereign power of the State. But the proceedings of Judge ' Durell, and the support given to him by United States troops, resulted in establishing the authority de facto of Kellogg and his associates in State offices, and of the persons declared by the Lynch board to be elected^ to the legislature. We have already seen that the proceedings of that board cannot be sustained without disregarding all the principles of law applicable to the subject, and ignoring the distinction between good faith and fraud. Your committee are, therefore, led to the conclusion that if the election held in No- vember, 1872, be not absolutely void for frauds committed therein, McEnery and his associates in State ofBces, and the persons certified as members of the legislature by the De Feriet board, ought to be recognized as the legal government of the State. Consid- ering all the tacts established before your committee, there seems no escape from the alternative that the McEnery government must be recognized by Congress, or Congress ^ must provide for a re-election. And this brings us to consider — 1. Whether the election of November last is void for fraud; and 2. If void, has Congress the authority to order a re-election ? First. A careful consideration of the testimony convinces us that, had the election of Novemher last been fairly conducted and returned, Kellogg and his associates, and a legislature composed of the same political party, would have been elected. The colored population of that State outnumbers the white, and in the last election the colored voters were almost unanimous in their support of the Republican ticket. Governor Warmoth, who was elected by the Kepublicans of the State in 1868, had passed into opposition, and held in his hands the entire machinery of the election. He appointed the supervisors of registration, and they appointed the commissioners of election. The testimony shows a systematic purpose on the part of those conducting the election to throw every possible difficulty in the way of the colored voters in the matter of registration. The polling places are not fixed by law, and at the last election they were purposely established by those conducting the election at places inconvenient of access, in those parishes which were known to be largely Eepublican; so that, in some instances, voters had to travel over twenty mile.s to reach the polls. The election was generally conducted in quiet, and was, perhaps, unusually free from disturbance or riot. Governor Warmoth, who was the master spirit in the whole proceeding, seems to have relied upon craft rather than violence to carry the State for McEnery. In the canvass of votes which determined the JMcEnery government to be elected the votes of several Republican parishes were rejected. The testimony shows that leading and sagacious politicians of the State, who were acting with Warmoth, entertained the opinion before the election that Warmoth's con- trol of the election machinery was equivalent to 20,000 votes; and we are satisfied by the testimony that this opinion was well founded. We believe that had registration been accessible to all, and polling places been properly established, the result of the election would have been entirely difierent. And although we cannot approve of such a canvass as that made by the Lynch board, who seem to have acted upon the principle of "fighting the devil with fire," and circumventing fraud by fraud, and cannot say that KeUogg's government was elected, nevertheless we believe that Kellogg's government was defeated, and the popular voice reversed, by the fraudulent manipulation of the election. If the Senate should be inclined not to go behind the ofBcial returns of the election, then the McEnery government and legislature must be recognized as the lawful govern- ment of the State, and McMillen, if regularly elected by that legislature, should be seated in the Senate in place of Kellogg. But your committee believe that this would be recog- nizing a government based upon fraud, in defiance of the wishes and intention of the voters of that State. 458 SENATE ELECTION CASES. Second. If the Senate shall concur -with us in the opinion that the frauds committed in the election are sufficient to annul it, then it -will be necessary for the Senate to con- sider whether Congress has the power to order a re-election. This is one of the moat important and delicate questions that can arise under the Con- stitution of the United States. The Constitution, article 4, section 4, provides: "The United States shall guarantee to every State in this Union a republican form of government, ' ' ,&c. This provision of the Constitution requires that the United States shall guarantee to every State two things: First, a government; and second, a government which is repub- lican in form. What is meant by the term "government" in this part of the Constitution ? That man or body of men, in any community, who exercise sovereign power constitute the government of that community; and the best definition of a republican government ever given in the, English tongue is that given by President Lincoln: "A government of the people, by the people, for the people." A standard author thus defines sovereignty: "In every society, not being in a state of nature or a state of anarchy, some person or persons must possess the supreme or sovereign power. "The marks by which the possession of the sovereign power may be distinguished are mainly two, the one positive and the other negative, viz: "1. A habit of obedience to some determinate person or persons by the community which he or they assume to govern. ' ' 2. The absence of a habit of obedience, on the part of the same person or persons, to any person or government. ' ' This definition furnishes us a criterion for determining whether there is at present any government in the State of Loaisiana. And, judging the condition of things by this rule, it is impossible to say thjt the State has any government whatever. The McEnery government, so called, approaches more nearly a government de jure, and the Kellogg government a government de/ac, be it what it may, does not establish or disestablish the Kellogg government, so as to affect or conclude the rights of others not involved in the elegtion of Senator itself The people of Louisiana may con- sider themselves outraged by our action in receiving a Senator not elected by what they may hold to be the rightful legislature; uevertheless they are bound by it, because we have the right to judge and determine; but will any one pretend to say that the separate action of this body upon this single question, committed exclusively to its jurisdiction, should bind and conclude any other person and any other department, either State or Federal, in their own separate and distinct relations with this legislature, or as to any rights they may have as against or instead of it ? Surely not ! Therefore our decision does not vest a single right or confer a single power upon any other human being save the person upon which we have passed and admitted to membership upon this floor. But to recur to the question. If, in the course of the investigation, from all the facts drawn from all the sources to which we have referred, we conclude that the pretended governor is a mere usurper, then his acts are void and avail nothing. Persons hold office or place under three different tenures — first, de jure; second, de facto; and, third, as a usurper — the only three modes, we believe, known to thelaw; and by one or the other of these tenures does the person exercise the ofBce or place that he holds. The first is clothed with all the powers that right, combined with possession, can give. The second is only clothed with the powers possession can give, that possession being obtained under a color of right; and these powers are limited to certain well-defined acts. The third refers to a person undertaking to hold office without any color of right; he is a mere usurper, whose acts are void. The distinguishing differences between officers dejure and de facto and a mere usurper are well laid down in the hooka in the earlier days, aod the same are ohaerved to l^ia THE LOUISIANA CASES, 1813-80. 491 day. In a leading case, decided so far Iback as 1738, the general principles relating to oacei-s de jure and de facto were well defined. In this case one Goldwire, "under pre- tense and color of being elected mayor of Christ Church, in the county of Southampton, ' ' was presented unto William Willis, steward of the court leet, and was there sworn into the omce of mayor, and, in fact, exercised thie ofOce till day of , 1736, and that being in t^e exercise of said oflace, and under "pretense of being elected, and sworn into the same, he issued a summons to the several burgesses of the corporation to meet," &c., and at such, meeting he nominated the defendant Lisle as one of the burgesses, and the question was whether, when he made such nomination, he was mayor defaeto, lor it was touna that he had never been elected, and, if mayor defaeto, whether he had the power to make the appointment. It was held by the court that Goldwire was not so much as a mayor de facto; for in order to constitute a mayor de facto it is necessary that there LT™ « °l '^^°^ °^ ^^ election; but without this, the taking the title and regalia 01 the omce, and the acting and being sworn in as mayor are not sufficient. Now, here It appears that Goldwire was never elected in fact; and though it be stated that he was sworn at the leet, it does not appear (as it ought) that this was agreeable to the consti- tution of the borough. And it is not material that he acted as mayor, as it is found that a quo warranto was recently prosecuted against him, pending whicfi the present election was made, and that he was thereupon adjudged to be a usurper. ' ' (Andrews's Reports, Henry vs. Lisle, 173.) The distinctions then made are continued to this day, and are as clearly defined: "An officer de facto is one who exercises the duties of an office under color of an ap- pointment or election to that office. He difi'ers, on the one hand, from a mere usurper of an office, who undertakes to act as an officer without any color of right, and on the other from an officer de jure, who is in all respects legally appointed and qualified to exercise the office. These distinctions are very obvious, and have always been recog- nized."— (17 Connecticut, Plymouth vs. Painter, 588; 7 Johnson, Peoples. Collins, 549; 2 Kent.) It is claimed by some that though it be a question whether Kellogg be a governor de jure, yet he is a governor defaeto, and as such his certificate of the election of Pmchback is to be recognized as equally binding upon us as if he were governor dejure. Holding, as we do, that he is neither the governor de jure nor de facto, but a mere usurper, and a usurper not keeping himself in position by his own unaided local power, but by the aid of armed forces of a foreign' power—- in its true relations to this case as much a foreign power as that of Great Britain could be — we desire, briefly, to examine this phase of the subject. Keeping in view the rulings we have cited, is Kellogg so much as a governor defaeto? In dispo.sing of this we dispose of his character as governor rfej'wj-e. As we have already noticed, the constitution of Louisiana provides that the. governor shall be elected by the people. To be such de facto, he must be in by color of an elec- tion. If he has no color of an election, he is nothing but a usurper, "who is one under- taking to act without a color of right." Two propositions are to be here considered, in order to arrive at correct conclusions^ 1. Was Kellogg elected by a majority of the votes of the people at the. election held on the 4th day of November, 1872? 2. If he was not, then had he such a color of an election as to constitute him governor de facto 1 This brings us to the' wider domain of fact which at every step has marked this contro- versy from its inception in 1872 to the present period. In the direct examination of the matter, all the facts that may tend to a correct result should be considered. We have a great variety of facts and circumstances, some historical in their character, some which we are obliged to know or are assumed to know from our constitutional relations to the State, her people, her government, her officials, whether judicial, ministerial, executive, or political, and those which we have gathered ourselves through committees of this body in the investigation had by resolution of this body passed on 16th January, 1873, and which is as follows: " Besolved, That the Committee on Privileges and Elections be instructed to inquire and report to the Senate whether there is any existing State gov- ernment in Louisiana, and how and by whom it is constituted; " and to which commit- tee were also referred the certificates of John Eay and W. L. McMillen, both claiming the seat in this body supposed to have been made vacant by the resignation of William Pitt Kellogg. This committee, composed of Messra Morton, Carpenter, Logan, Anthony, Trumbull, Alcorn, and Hill, made a diligent and laborious investigation of all the matters con- nected with both questions, and made an elaborate report to the Senate, accompanied by a large amount of testimony. It is Senate report No. 457. Forty-second Congress, third session. From all the evidence, then, and which covers and exhausts the whole subject, was Kellogg in fact elected by the people of Louisiana the governor of that State? The testimony Siows that the election was held on the 4th day of November, 1872, and that 492 SENATE ELECTION CASES.. it vcas held under the election laws of that State, approved March 16, 1870, and that official returns were made of that election to the governor of the State by the supervis- ors of registra,ti6n as required by the fifty- third section of that act. The fifty-fourth section of the same act provides for a returning hoard, before whom all returns aratobe laid by the governor, the governor being one of the board by virttfe of his office, and this board is to canvass and compile these returns of elections and make returns of the persons elected to the secretary of state. Henry C. Warmoth was then governor of the State of Louisiana, having been elected in 1868, andwho, by arti- cle 53, title 3 of the constitution, was to hold his office till the second Monday of Jan- uary thence following the election held on the 4th day of November, 1872, and until the Monday next succeeding the day that his successor shall have been declared as duly elected, and shall have taken the oath of office as required by the constitution. It is not our purpose just now to refer to the difficulties occurring in the organization of the board ofrettmuDg officers; upon another branch of the subject we shall revert to it; but it is sufficient for our present purpose to ascertain 'that the election was held and the official returns were made of that election, and that they were counted and the result ascertained. The official returns were made to the governor by the supervisors, and were by him laid before a board of returning officers, claiming to be legally constituted for-this elec- tion. It may be necessary here to state that by the election law of 1870 the governor, lieutenant-governor, the secretary of state, one John Lynch, and T. C. Anderson, or a majority of them, were made the returning officers for all elections in the State. The governor had in his possession the official returns of the election, but by reason of the changes in the board through disqualifications and from other causes, and through which two boards were organized, each claiming to be the legal one, and both appealing to the courts of the State to settle their respective rights, he did not lay the official re- turns before either board; but, in view of the condition of things, and to getiid of the difficulties of th^ situation, and to get rid of both boards, he approved the law passed at the preceding session of the legislature providing the mode of conducting "elections, and which repealed entirely and absolutely the election law of 1870- He approved this act • November 20, 1872, and it provided specially for the selection of a board of returning officers, to be made by the senate. This at once put out of official existence the con- tending members of the rival boards. The senate not being in session, Warmoth then, by virtue of the power claimed by him under the constitution to fill vacancies, appointed De Feriet, Wiltz, Isabelle, Austin, and Taylor, who took the oath of office, and betbre whom, on the 4th day of December, 1872, he laid the official returns, and they proceeded to canvass and compile them for senators and members of the house of representatives, and declared the results, and which were then officially promulgated -by Governor War- moth. This return gave the results in both branches of the legislature as we have al- ready stated them. On the 20th day of November, 1872, the day on which he signed the act abolishing the old board, he issued his proclamation calling an extra session of the legislature, to convene on the 9th of December. The majority of the members of both branches of the legislature declared to be elected by this returning board met on the 9th December at the city hall in New Orleansf and organized both houses. They were recognized by Governor Warmoth as the legal legis- lature of Louisiana. After organization, the senate proceeded to elect five persons, taken from all political parties, to constitute the board of returning officers for elections, as required by section 2 of the act of November 20, 1872, and accordingly elected Mitchel, Forman, Thomas, Hunsaker, and Todd as such returning officers. The official returns were laid before this board by the secretary of the De Feriet board, which had just be- fore completed a canvass of them for members of the legislature, as we have stated, and they were all again canvassed by this new board, and wiih the following result: McEnery '__ ^ 66,767 Kellogg _■ 54,479 Majority for McEnery ... 11,288 The .witness, Mr. Forman, a member of this board, brought with him the official re- turns and had them before the committee of the Senate, then investigating the case, and in all his testimony gave a satisfactory account of the manner in which the canvass was made. His evidence will be found, together with the official vote for governor, in the report made by Mr. Carpenter, and accompanying testimony on pages 75 to 83, in- clusive. There was no pretense that these were not the official returns; they were be- fore the committee. There was no eifort made to invalidate them in any way. Every opportunity was given. The same section of the law requiring the supervisor of regis- tration to send the voting list and returns to the governor also required him to make triplicates and retain one. No effi)rt was made by the production of any duplicates to THE LOUISIANA CASES, 1878-80. 493 impair their correctness. It must be conceded that they were the official lesults; and that according to them McEnery was elected. There can be no other conclusion. It must be conceded, too, that Kellogg was not elected. Whatever right to the position as governor Kellogg may have, he certainly has none by the regular official returns of the votes of the people, as cast and returned under the constitution and laws of Louisiana. Then, having no right whatever by virtue of the election itself, has he any right by color of an election? And this brings us to the second proposition. We can well con- ceive that this right by color of an election is somewhat indefinite in meaning and sub- ject to many deductions in inferences from a given statement of facts, as in this case. Some may ascribe a more rigid construction as to what may be meant by a colorable right to a place than others. But this must be determined upon all the facts and cir- cumstances as they are presented, and we must gather from them whether there is in good faith any colorable right to hold the place; otherwise it is a fraud and a usurpation. There must be some reasonable meaning attached to the words "colorable right," or ' ' under color of an election. ' ' Why use them in order to create an officer de facto, and to distinguish him from a usurper, unless they do mean something or have some force? We hold that, giving the weakest possible force to these words, there is nothing in this whole ease that can give a pretense to the color of an election. -It has been shown that Kellogg was not elected. Then what is there to impress him with the color of an election ? Nothing whatever. A more bold, shameless, reckless usurpation is not ibund in history. He stands upon one thing, and upon one thing alone, and that is the declaration that if the people had voted anj voted their sentiments he would have been elected. If this can give a color to a right, and dignily him with official power, even for the most lim- ited purposes, then he is endowed with it. He pretends to hold his election by virtue of a canvass under a board claiming to be returning officers — consisting of Lynch and Herron for a time, then Bovee, Longstreet, and Hawkins — in which they gave some 17,000 majority to Kellogg. The objections to, this canvass are, first, that these gentlemen had not a tittle of au- thority to canvass, the law under which they pretended to act being absolutely repealed, and therefore they possessed no power whatever to do so. And next, that there was not an official return before them to canvass; but it is ad- mitted by Lynch in his testimony taken by the committee, found on page 155, that there we re no returns before them, and that they obtained their information as to the results of the election from all kinds of sources, and from one particularly, the known political divisions of the voters of a county. Comment upon such a canvass is unnecessary. The machinery of elections by means of which public sentiment is definitely ascertained, and our governments, botb Federal and State, are carried on, is an essential element in the American system. There is no substitute for it, and without it there is no order, government, or law. It must be established for the public good, and it must be supported when established for the pub- lic safety. The collected will of the people is only known through it. The voter that does not resort to it for the expression of his will from any cause cannot be heard above it or outside of it. True, an election may be set aside for fraud, intimidation, or other pregnant cause, but still the collected will of the people must be expressed through its machinery. A citizen not voting is as dead in law as if he were in fact dead solar as concerns the affirmative expression of his political will. The question is not what the voter may have done had he voted or offered to vote, but what dirt he do by his vote? But to characterize properly the power of this board to make this canvass, and the supreme folly of the canvass itself, it will only be necessary to refer to thereport from the Committee oh Privileges and Elections, signed by Messrs. Carpenter, Logan, Anthony, and Alcorn, and to which we have already referred. The following extracts are to be found on pages 26, 27, and 28: ' '-One of two things is certain, the governor's approval of the new election law on the 20th of November gave it effect on that day or it did not. "Assuming that the approval on that day was regular, the new law absolutely re- pealed all the laws under which the Warmoth board and the Lynch board were pre- tending to act, and of course abolished both boards without regard to the question which was the legal one. All that had been done in the election of November, 1872, in pur- suance of the old laws, that is, the registration, voting, and returns, was as valid after the act of November 20 as before. If the canvass had been made by the proper board under the old law, and in all things completed, the rights of parties based upon that canvass would not have been affected by the repeal of the laws. But the act of Novem- ber 20 taking effect after the returns were made and before they were canvassed, trans- ferred the duty of canvassing to the new board created by the act." Again: "Qn tlje 6tl> of December, 1872, the Lynclj board — Bovee (wbo w^s then acting as 494 SENATE ELECTION CASES. secretary of state in place of Herron), Lynch, Longstreet, and Hawkins^ — ^pretended to have canvassed the returns of the election, and certified to the secretary of state that Kellogg had been elected governor; Antoine, lieutenant-governor; Clinton, auditor; Pield, attorney-general; Brown, superintendent of education; and Deslondes, secretary of state; and also certified to a list of persons ■whom they had determined to be elected to the legislature. "There is nothing in all the comedy of blunders and frauds under consideration more indefensible than the pretended canvass of this board. The following are some of the objections to the validity of their proceedings: "1. The board had been abolished by the act of November 20. "2. The board was under valid and existing injunctions restraining it from acting at all, and an injunction in the Armstead case restraining it from making any canvass not , based upon the official returns gf the election. "3. Conceding the board was in existence, and had full authority to canvass the re- turns, it had no returns to canvass. ' ' The returns from the parishes had been made under the law of 1870 to the governor, and not one of them was before the Lynch board. "It was testified before your committee by Mr. Bovee himself, who participated in this canvass by the Lynch board, that they were determined to have a Republican legis- lature, and made their canvass to that end. The testimony abundantly establishes the fraudulent character of their canvass. In some cases they had what were supposed to be copies of the original returns, in other cases they had nothing but newspaper state- ments, and in other cases where they had nothing whatever to act upon they made an, estimate based upon their knowledge of the political complexion of the parish of what the vote ought to have been. They also counted a large number of affidavits purporting to be sworn to by voters who had been wrongfully denied registration or the right to vote, many of which affidavits they must have known to be forgeries. It was testified by one witness that he forged over a thousand aflidavits and delivered them to the Lynch board while it was in session. It is quite unnecessary to waste time in considering this part of the case, for no person can examine the testimony ever so cursorily without seeing that this pretended canvass had no semblance of integrity. " It may be well enough to observe here that besides the distinguished gentlemen who uuited in this report. Judge Trumbull and Mr. Hill, who were members of the commit- tee, in this respect concurred with the report, whilst differing tipon some other things, and in conclusions upon the whole case. The ability of all these gentlemen in -the per- formance of the grave duty assigned to them is unquestioned; their labor and attention about it known and appreciated; and their party affiliations must stamp their detail of facts with freedom from all political bias in favor of McEnery and his government. Can anything more be added to show that there is not a pretense by which Kellogg can manufacture a colorable title to an election in'fact? It must be remembered thajt we are not in this controversy obliged to show that Mr. McEnery was elected in fact. Our purposes are answered when we show that Kellogg is not elected, or that he has no colorable title to an election. In simple justice to the gentlemen of the committee making the report to which I have " referred, whilst thus admitting that Kellogg was not elected, they come to the conclusion that, from irregularities, intimidations, and frauds, and other causes, no fair election had been held, and that it should be annulled and a new one ordered by Congress, and to be conducted under the auspices of the General Government. In order that there may be no misconception j we give the following extract frojn their report, which will be found on pages 44 and 45: "The testimony shows that leading and sagacious politicians of the State, who were acting with Warmoth, entertained the opinion before the election that Warmoth's con- trol of the election machinery was equivalent to 20, 000 votes ; and we are satisfied by the testimony that this opinion was well founded. We believe that, had registration been accessible to all, and the polling places been properly established, the result of the elec- tion would have been entirely different. And although we cannot approve of such a canvass as that made by the Lynch board, who seem to have acted upon the principle of 'fighting the devil with fire,' and circumventii^g fraud by fraud, and cannot say that Kellogg's government was elected, nevertheless we' believe that Kellogg's government was defeated and the popular voice reversed by the fraudulent manipulation of the elec- tion. " If the Senate should be inclined not to go behind the official returns of the election, then the McEnery government and legislature must be recognized as the lawful govern- ment of the State; and McMillen, if regularly elected by that legislature, should be seated in the Senate in place of Kellogg. But your committee believe that this would be recognizing a government based upon fraud, in defiance of the wishes and intention of tb^ voters of that gt^t?. ' ' THE LOUISIANA CASES, 1873-80. 485 __ _ ^ , „ Fkiday, January 30, 1874. The Senate resumed, &c. ' a£ JH n^?*J® °^ *^® ^^* *'^° ^y^' iocluding a speech by Mr. Carpenter, is found on pages 1036-1058 of the Congressional Eecord, vol. ii, part 2. Mr. Norton's speech is found on pages 41-43 of the Congressional Eecord, vol. ii. Appendix.] Monday, February 2, 1874. The Senate resumed, &c. ^.^"^^^ ^^^f*® ^ ^°^^ °'^ P^Ses 1109-1111 of the Congressional Eecord, vol. ii, part 2. Mr. Morton's speech is found on pages 43-48 of the Congressional Record, vol. ii, Ap- pendix.] ' -^ [Second session of the Forty-third Congress.] Wednesday, December 16, 1874. The Vice-President laid before the Senate a letter of W. L. McMUlen requesting the speedy action of the Senate upon his credentials as Senator-elect from the State of Lou- isiana; which was referred to the Committee on Privileges and Elections. Wednesday, December 23, 1874. Mr. Morton submitted the following resolution for consideration; which was ordered to be printed: "Resolved, That the Senate recognize the validity of the credentials of P. B. S. Pinch- back as certified to by Governor William P. Kellogg, of Louisiana, under the seal of said State; and the Committee on Privileges and Elections are instructed to examine and re- port if said Pinchback is entitled to be admitted on the prima facie case thus made, or if such admission should be postponed untU investigation is made as to the charges of corruption in his election alleged against him. " Fkiday, January 22, 1875. Mr. West presented the credentials* of Pinckney B. S. Pinchback, elected a Senator by the legislature of Louisiana for the term expiring March 3, 1879; which were read. On motion by Mr. Sherman, Ordered, That the credentials, together with the papers in relation to the contested seat in the Senate from the State of Louisiana^on the files of the Senate, be referred to the Committee on Privileges and Elections. Saturday, February 6, 1875. Mr. West presented a memorial of P. B. S. Pinchback, praying speedy and definite action upon his credentials as Senator-elect from the State of Louisiana; which was re- ferred to the Committee on Privileges and Elections. Monday, Februa/ry 8, 1875. Mr. Morton, from the Committee on Privileges and Elections, to whom were referred the credentials of P. B. S. Pinchback, by unanimous consent submitted a report (No. 626), accompanied by the following resolution: "Resolved, That P. B. S. Pinchback be admitted as a Senator from the State of Lou- isiana for the terra of six years beginning on the 4th of March, 1873." [The debate is found on page 1063 of the Congressional Record, vol. iii, pait 2.] REPORT OF COMMITTEE. [The committee consisted of Messrs. Morton (chairman), Carpenter, Logan, Alcorn, Anthony, Mitchell, Wadleigh, Hamilton of Maryland, and Saulsbury.] In the Senate of the United States. Ffbeuary 8, 1875. — Ordered to be printed. Mr. Morton, from the Committee on Privileges and Elections, submitted the follow- ing report: The Committee on Privileges and Elections, to which were referred the credentials of * A cop? of th^ cre4ei4iala is fovmd on page 647 of the Congressional Record, vol, iii, part 1, 496 SENATE ELECTION CASES. that body determine the right to a seat. We say again that the passage of the resolution decides only one thing, the right of membership, and binds no one to anything besides; but the fact that in doing this we have acknowledged the legal validity of Kellogg's official character may influence others or justify others in doing things to the infinite injustice of the people of Louisiana, and to the persons there claiming to be officers by virtue of a rightful election. Again, we well understand the principles which limit and qualily the powers of an officer de facto. His acts are scanned and judged; he can do only those that are to be considered as necessary to be done; indeed, so confined in this respect that it was held, in the case of King vs. Lisle, that the proper question in a case would he "whether the person be an officer de facto as to the particular purpose under consideration ; " he can do nothing for himself; he cannot set up title by virtue of his office; he cannot sue lor his fees or salary; he cannot justify in a trespass; he can do nothing that may bring in issue his right to hold the office without showing that dejure right lor the exercise of it. As a judge de facto his judgment in a litigation between third parties -would he good; a sale of property under such a judgment would be good to pass title; and for the rea- son that third parties are not supposed to be able to inquire into the rights of one holding and exercising the duties of the office, and must therefore act upon what appears to be the right. But a sheriff de facto seizing and selling the property under that or any other judgment in a suit against him for the seizure by the owner or possessor of the property, he must for his defense show that he held his office de jure, lor this concerns himself only, and he should know whether he was in right an officer. Shorn of the general and enlarged powers of an officer de jure by the plainest princi- ples of law, limited and circumscribed byrules founded in reason and havingthe sanction of ages, shall we be disposed to give to the act of such an officer— governor de facto, if even he be such — that full and unqua.lified effect in4his case, with the extraordinaryroviding for the admission of P. B. S. Pinchback to a seat in the Senate as a Senator from the State of Louisiana; and, Pending debate, . . „ On motion by Mr. Sherman, the Senate proceeded to the consideration of executive l)lisi I1€S3 [The debate Is found on pages 3-7 of the Congressional Eecord, vol. iv, part 1.] Tuesday, March 9, 1875. The Senate resumed, &c. „ , , • _x i i [The debate is found on*t)ages 8-17 of the Congressional Eecord, vol. iVj-pait l.J Wednesday, March 10, 1875. The Senate resumed, &c. . , „ ^ , ■ t i i [The debate is ibund on pages 17-25 of the Congressional Record, vol. iv, part l.J Feiday, March 12, 1875. The Senate resumed, &c. . , t, , , „* i i [The debate is found on pages 3:,'-41 of the Congressional Record, vol, iv, part l.J 504 SENATE ELECTION CASES, • Sattjeday, March 13, 1875. The Senate resumed, &e. ; and, Onmotion by Mr. Edmunds to amend the resolution by inserting the word "not" before the word "admitted," Pending debate, On motion by Mr. Conkling, the Senate proceeded to the consideration of executive business. [The debate is &und on pages 41-53 of the Congressional Eecord, vol. iv, part 1.] Monday, March 15, 1875. The Senate resumed, &c. ; and The question being on the amendment proposed by Mr. Edmunds, viz, insert the word ' ' not ' ' before the word ' ' admitted, ' ' Pending debate, On motion by Mr. Morton, the Senate proceeded to the consideration of executive busi- ness. [The debate is found on pages 55-63 of the Congressional Eecord, vol. iv, part 1.] Tuesday, March l8, 1875. The Senate resumed the consideration of the resolution to admit P. B. S. Pinchbatk to a seat in the Senate as a Senator from the State of Louisiana; and. After debate, On motion by Mr. West that the further consideration thereof be postponed to the second Monday in December next, it was determiaed in the affirmative — yeas 33, nays 30. On motion by Mr. West, the yeas and nays being desired by one-fifth of the Senators ' present. Those who voted in the afSrmati^ire are Messrs. Alcorn, Allison, Boiitwell, Bruce, Burn- side, Cameron of Pennsylvania, Cameron of Wisconsin, Clayton, Conover, Cragin, Dawes, 'Dorsey, Ferry of Michigan, Frelinghuysen, Hamilton, Hamlin, Harvey, Howe, Ingalls, Jones of Nevada, McMillan, Mitchell, Morrill of Maine, Morrill of Vermont, Morton, Oglesby, Paddock, Patterson, Sargent, Sherman, Spencer, West, and Windom. Those who voted in the negative are Messrs. Bayard, Bogy, Bootl\, Caperton, Chris- tiancy, Cockrell, Cooper, Davis, Eaton, Goldthwaite, Gordon, Hitchcock, Johnson of Tennessee, Johnston of Virginia, Jones of Florida, Kelly, Kernan, McCreery, McDonald, Maxey, Merrimon, Norwood, Randolph, Eansom, Saulsbury, Stevenson, Thurman, Wal- lace, Whyte, and Withers. So the motion was agreed to. [The debate is found on pages 62-91 of the Congressional Eecord, vol. iv, part 1.] [First session of the Forty-fourth Congress.] / Thuesday, December 9, 1875. Mr. West presented a letter* of W. L. McMillen, asking permission to withdraw from the files of the Senate his credentials as Senator-elect from the State of Louisiana, and submitted the following order: Ordered, That the request of W. L. McMillen, heretofore claiming a seat in the Sen- ate from the State of Louisiana, lor .the return of his credentials be granted. Tuesday, December 14, 1875. Ordered, That the request of William L. McMillen, heretofore claiming a seat in the Senate from the State of Louisiana, for the return of his credentials be granted. After debate. On the question to agree thereto, it was determined in the affirmative— yeas 30, nays 28. On motion by Mr. Howe, the yeas and nays being desired by one-fifth of the Senators present, Those who voted in the affirmative are Messrs. Allison, Boutwell, Bruce, Burnside, Cameron of Wisconsm, Christiancy, Clayton, Conkling, Conover, Cragin, Edmunds, Ferry, Frelinghuysen, Hamlin, Harvey, Hitchcock, Howe, Ingalls, McMillan, Morrill of Ver- mont Morton, Paddock, Patterson, Robertson, Sargent, Sherman, Spencer, West, Windom, and Wright. *■ ' ' Those who voted in the negative are Messrs. Bayard, Bogy, Caperton, Cockrell, Cooper, Dav is, Dawes, Eaton, Eng lish, Goldthwaite, Gordon, Johnston, Jones of Florida, KeUy, * A copy of the letter is found on page 190 of the Congressional Kegord, vol.~ivrpaLt l^ — ™- THE LOUISIANA CASES, 1873-80. 505 Kernan, Key, McCreeiy, McDonald, Merrimon, Norwood, Randolph, Ransom, Saulsbury, Stevenson, Thurman, Wallace, Whyte, and Withers. So it was Ordered, That the request of Mr. McMillen be granted, and that his credentials be returned to him by the Secretary. [The debate is found on pages 200-204 of the Congressional Record, vol. iv, part 1.] CEEDENTIALS OF ME. MAEE. ^ Monday, December 20, 1875. Mr. Bayard presented a paper signed by John McEneryas governor of Louisiana and purporting to be the credentials of Robert H. Marr, appointed a Senator to fill the vacancy occasioned by the resignation of William L. McMillen. Ordered, That it lie on the table. CEEDENTIALS OP ME. EUSTIS. Tuesday, January 18, 1876. Mr. Tburman presented papers purporting to be the credentials of J. B. Eustis as a Senator ftom the State of Louisiana for the term ending March 3, 1879. Ordered, That they lie on the table. [The debate and a copy of the credentials are found on pages 451-455 of the Con- gressional Record, vol. iv, part 1.] Monday, January 24, 1876. On motion by Mr. Morton, Ordered, That the papers purporting to be the credentials of J. B. Eustis as a Senator from the State of Louisiana be referred to the Committee on Privileges and Elections. Wednesday, January 26, 1876. . Mr. West presented a memorial* of certain State senators of Louisiana in relation to the election of Hon. James B. Eustis as United States Senator from that State; which was referred to the Committee on Privileges and Elections, and ordered to be printed. Feiday, January "is, 1876. Mr. Morton, from the Committee on Privileges and Elections, to whom were referred papers purporting to be credentials of J. B. Eustis, claiming a seat in the Senate as a Senator from the State of Louisiana, submitted the following report: EEPOET OF COMMITTEE. [The committee consisted of Messrs. Morton (chairman), Logan, Mitchell, Wadleigh, Cameron of Wisconsin, McMillan, Saulsbury, Merrimon, and Cooper.] The Committee on Privileges and Elections, to whom were referred the papers relating to the election of J. B. Eustis to a seat jn this body by the legislature of the State of Louisiana, beg leave to report: That in their opinion there is no vacancy in l^he office of Senator from the State of Louisiana, P. B. S. Pinchback having been elected in January, 1873, to the term begin- ning on the 4th of March, 1873. They therefore recommend that the papers relating to Mr. Eustis be laid upon the table. Thuesday, February 3, 1876. On motion by Mr. Morton, the Senate proceeded to consider the resolution submitted by him March 5, 18,75, for the admission of P. B. S. Pinchback to a seat in the Senate as a Senator from the State of Louisiana; and. On motion by Mr. Edmunds, the Senate proceeded to the consideration of executive business. Feiday, February 4, 1876. The Senate resumed, &c. The question being on the amendment proposed by Mr. Edmunds, viz, before the word ' ' admitted, " in the said resolution, insert the word ' ' not, ' ' Pending debate, On motion by Mr. Cameron, of Pennsylvania, the Senate proceeded to the considera- tion of executive business. [The debate is found on pages 886-889 of the Congressional Record, vol. iv, part l.J ^» Found in Senate Miscellaneous, 44th Cong., 1st sess., No. 41. 506 SENATE ELECTION CASES. Monday, February 7, 1876. The Senate resumed, &c. [The debate is found on pages 907-913 of the Congressional Eecord, vol. iv, part 1.] Tuesday, February 8, 1876. The Senate resumed, &c. ' [No debate took place.] Monday, February 14, 1876. The Senate resumed, &c. [The Congressional Eecord states (page 1065^ vol. iv, part 2) that Mr. Morton's speech made this day would be printed in the Appendix, but it does not appear there.] Wednesday, March 1, 1876. The Senate resumed, &c. [The debate is found on pages 1383-1392 of the Congressional Eecord, vol. iv, part 2.] Thuesday, MareJiU, 1876. The Senate resumed, &c. [No debate took place.] Feiday, March 3, 1876. The Senate resumed, &c. [The debate is found on pages 1436-1444 of the Congressional Eecord, vol. iv, part 2.] Monday, March 6, 1876. The Senate resumed, &c. [No debate took place.] Tuesday, March 7, 1876. The Senate resumed, &c. [The debate is found on pages 1511-1516 of the Congressional Eecord, vol. iv, part 2. ] Wednesday, March 8, 1876. The Senate resumed the consideration of the resolution to admit P. B. S. Pinchback to a seat in the Senate as a Senator from the State of Louisiana; and. The question being on the amendment proposed by Mr. Edmunds, viz, before the word ' ' admitted "in the said resolution insert the word ' ' not, ' ' After debate, it was determined in the affirmative — yeas 32, nays 29. On motion by Mr. Edmunds, the yeas and nays being desired by one-filth of the Sen- ators present, Those who voted in the affirmative are Messrs. Bayard, Caperton, Christiancy, Cock- rell, Cooper, Davis, Dennis, Eaton, Edmunds, English, Gordon, Johnston, Jones of Flor- ida, Kelly, Kernan, Key, McCreery, McDonald, Maxey, Merrimon, Morrill of Maine, Morrill of "Vermont, Norwood, Paddock, Eandolph, Eansom, Saulsbury, Stevenson, Thnr- man, WaUace, Whyte, and Withers. Those who voted in the negative are Messrs^ Allison, Anthony, Boutwell, Bruce, Cam- eron of Pennsylvania, Conkling, Conover, Cragin, Dorsey, Ferry, Frelinghuysen, Ham- ilton, Hamlin, Harvey, Hitchcock, Howe, Ingalls, Jones of Nevada, Logan, McMillan, Mitchell, Morton, Patterson, Sargent, Sharon, Sherman, Spencer, West, and Windom. So the amendment was agreed to. On the question to agree to the resolution as amended, it was determined in the affirm- ative — yeas 32, nays 29. On motion by Mr. Morton, the yeas and nays being desired by one-fifth of the Sena- tors present. Those who voted in the affirmative are Messrs. Bayard, Caperton, Christiancy, Cock- rel], Cooper, Davis, Dennis, Eaton, Edmunds, English, Gordon, Johnston, Jones of Flor- ida, Kelly, Kernan, Key, McCreery, McDonald, Maxey, Merrimon, Morrill of Maine, Morrill of Vermont, Norwood, Paddock, Eandolph, Eansom, Saulsbury, Stevenson, Thur- mah, Wallace, Whyte, and Withers. Those who voted in the negative are Messrs. Allison, Anthony, Boutwell, Bruce, Cam- eron of Pennsylvania, Conkling, Conover, Cragin, Dorsey, Ferry, Frelinghuysen, Ham- ilton, Hamlin, Harvey, Hitchcock, Howe, Ingalls, Jones of Nevada, Logan, McMillan, Jmcbell, Morton, Patterson, Sargent, Sharon, Sherman, Spencer, West, and Windom. So it was Besolved, That P. B. S. Pinchback be not admitted as a Senator from the State of Louisiana for the term of six years beginning on the 4lh of March, 1873. [The debate is found on pages 1545-1558 of the Congressional Eecord, vol. iv, part 2.] THE LOUISIANA CASES, 1878-80. 507 [Special session of Senate, March, 1877.] TnUKSDAY, March 8, 1877. Mr. Thurman submitted the following resolution for consideration : , '■'Besolmd, That the credentials of J. B. Eustis, claiming to be a Senator from the State of Louisiana, be taken from the files and referred to the Committee on Privileges and Elections when that committee shall be appointed." Feiday, 3Iarch 9, 1877. On motion by Mr. Thurman, the Senate proceeded to consider the resolution yesterday submitted by him for the reference of the credentials of J. B. Eustis to the Committee on Privileges and Elections; and The resolution was agreed to, as follows: "^Resolved, That the credentials of J. B. Eustis, claiming to be a Senator from the State of Louisiana, be taken irom the files and referred to the Committee on Privileges and Elections." [First session of the Forty-fifth Congress.] Thursday, October 18, 1877. Mr. Thurman submitted a motion that Mr. J. B. Eustis be now sworn as a Senator fi»m the State of Louisiana for the term expiring March 3, 1879. Mr. Conkling objected to the consideration of the motion, and raised the question of order, viz, that the credentials of Mr. Eustis having been referred to the Committee on Privileges and Elections at the last special session of the Senate and not having been reported upon, were not before the Senate, but still in possession of the committee under the fifty-ninth rule, which prescribes that all subjects referred to committees and not reported upon at the close of a session of Congress shall be returned to the office of the Secretary, to be by him retained until the next session, when fhey shall be returned to the several committees. The Vice-President submitted the question of order to the Senate in the Ibllowing words: "Shall all subjects referred to committees and not reported upon at the close of the last preceding session of this body, in March last, and returned to the office of the Sec- retary of the Senate, be referred to the several committees to which they had previously been referred? " And it was determined in the affirmative. On motion by Mr. Thurman that the Committee on Privileges and Election.? be dis- charged from the farther consideration of the credentials of J. B. Eustis, Mr. Edmunds objected to the consideration of the motion this day. When, On motion by Mr. Thurman (at 3o'clockandl6 minutes p. m.), the Senate adjourned. [The debate is found on pages 107, 108 of the Congressional Record, vol. vi,] Feiday, October 19, 1877. The Senate proceeded to consider the motion yesterday submitted by Mr. Thurman to discharge the Committee on Privileges and Elections from the further consideration of the credentials of J. B. Eustis; and. After debate, On motion by Mr. Thurman, Ordered, That the motion lie on the table. [The debate is found on pages 109-115 of the Congressional Record, vol. vi.] Saturday, December 1, 1877. Mr. Wadleigh, from the Committee on Privileges and Elections, to whom were referred papers purporting to be credentials of James B. Eustis, claiming a seat as a Senator from the State of Louisiana, reported the following resolution: '^Resolved, That James B. Eustis is lawfully entitled to a seat in the Senate of the United States from the State of Louisiana, from the 12th day of January, 1876, for the term ending March 3, 1879; and that he be admitted thereto upon taking the proper oath '.' Mr IngaUs asked and obtained leave of the Senate to submit the views* of a minority of the Committee on Privileges and Elections on the papers purporting t o be credentials * Never submitted. 508 SENATE ELECTION CASES. of James B. Eustis, claiming a seat in the Senate as a Senator from the State of Louisi- ana. REPORT OF COMMITTEE. [The committee consisted of Messrs. Wadlelgh (chairman), Mitchell, Cameron of Wis- consin, McMillan. Hoar, Ingalls, Sauls^ury, Merrimon, and Hill.] In the Senate of the United States. December 1, 1877. — Ordered to be printed. Mr. Wadleigh, from the Committee on Privileges and Elections, submitted the fol- lowing report: The Committee on Privileges and Elections, to whom were referred the credentials of James B. Eustis for a seat in the Senate of the United States from the State of Louisi- ana for the term of six years commencing March 4, 1873, ask leave to submit the fol- lowing report: Mr. Enstis claims to have been elected on the 12th of January, 1876. The body which elected him was that formed by what is known as the Wheeler compromise; and there is no doubt that it was the lawful legislature of Louisiana. Two questions arise in this case: First, whether Mr. Eustis was lawfully elected; second, whether at the time of his election a vacancy existed which the legislature of Louisiana had the right to fill. The legislature of Louisiana on the 12th day of January, 1876, consisted of a house containing one hundred and eleven members and a senate with thirty- six senators. On the 11th day of January, 1876, the house voted to go into an election for United States Senator, and the senate on the same day refused to do so. On the 13th day of January, it appearing that there had been no election on the day before, sixty-four members of the house and twelve members of the senate, being a majority of all entitled to seats in both houses, met in joint convention and elected Mr. Eustis. Your committee finAthat although the senate refused to take pa^rt as such in said election, and although a minority of the senate only did take part in it, yet there was a substantial compliance with the act of Congress of 1866. Upon the constitutionality of that act your committee express no opinion. The Senate has repeatedly' however, by its action affirmed its constitutionality; and your committee feel bound by the prece- dents which the Senate has established. The second question, whether or not a -vacancy existed at the time of Mr. Eustis's election which the legislature of Louisiana had the right to fill, is one of some difiiculty. At the time of said election Mr. P. B. S. Pinchback was the claimant for the same seat under two elections — one in 1873, the other in 1875. His credentials and claims under said elections had been presented to the Senate and by it referred to the Committee on Privileges and Elections. Said committee, on the 5th day of March, 1875, reported a resolution to the Senate that Mr. Pinchback be admitted thereto. On the 8th day of March, 1876, that resolution was amended so as to change it to a resolution that he he not admitted. The Tesolution was passed as thus amended on the same day. Your committee feel bound to regard that vote of the Senate as a final adjudication of the claims of Mr. Pinchback and a decision that he had no right to a seat. Mr. Eustis's election took place while Mr. Pinchback's case was pending in the Senate, and it may be contended with much force that until the final adjudication by the i^enate of Mr Pinchback's claims there was no vacancy which the legislature was authorized to fill. This question arose at the first session of the Twenty-third Congress, in the case u Potter vs. Bobbins, where a majority of the special committee of the Senate held that the legislature of Ehode Island had no authority to proceed to the election of another Senator untU the seat of the Senator-elect had been vacated by a solemn decision of the Senate of the United States. Silas Wright, of New York, made a report in behalf of the minority of said committee, in which it was contended that if the election of Mr. Eobbins was not made by the lawful legislature of the State it was absolutely void, and that therefore Mr. Potter's election while Mr. Eobbins's claim to a seat in the Senate was stm pending was valid. Your committee do not question the soundness of the rule laid down in that case, but are not disposed to apply it'to this case, where the circumstances are very different. In the case of Potter vs. Eobbins, Mr. Eobbins had been admitted to the Senate, the com- mittee had before it both his credentials and those of Mr. Potter; but hero there is no contest. The Senate never admitted Mr. Pinchback to his seat, but decided that he had no right thereto. This seat has long been vacant. Mr. Eustis is the only pcrf^on who appears to claim it. The lawful character of the legislature which eloctcd him u admitted. His election THE LOUISIANA CASES, 1873-80. 509 was substantiaUy in compliance with the law of Congress. No one appears to contest nis ngnt to a seat. Under these circumstances your committee believe that Mr. Eustis should be admitted to the Senate, and report a resolution to that effect and recommend Its passage. [Second session of the Forty-fifth Congress.] Monday, Decemler 10, 1877. On motion by Mr. Wadleigh, the Senate proceeded to consider the resolution reported by the Committee on Privileges and Elections declaring James B. Eustis entitled to a seat in the Senate as a Senator firom the State of Louisiana; and After debate. On the question to agree to the resolution, as follows: ,T '-^TLfi' '^^^ "^?™?f ^- ^"^^^i® ^^ lawfully entitled to a seat in the Senate of the United States from the State of Louisiana, from the 12th day of January, 1876, for the term ending March 3, 1879, and that he be admitted thereto upon taking the proper It was determined in the affirmative — yeas 49, nays 8. On motion by Mr. Ingalls, the yeas and nays being desu-ed by one-fifth of the Sena^ tore present. Those who voted in the nflarmative are Messrs. Anthony, Bailey, Barnum, Bayard Beck, Booth, Bruce, Burnside, Chaffee, Christiancy, Cockrell, Coke, Davis of "West Vir- gmia, Dawes, Doi-sey, Eaton, Ferry, Garland, Gordon, Harris, Hereford, Hill, Johnston, Jones of Florida, Jones of Nevada, Kernan, Kirkwood, Lamar, McCreery, McDonald, McPherson, Matthews, Maxey, Merrimon, Mitchell, Morgan, Oglesby, Paddock, Patter- son, Plumb, Eandolph, Ransom, Saulsbury, Teller, Thurmau, Voorhees, "Wadleigh, Wal- lace, and Withers. Those who voted in the negative are Messrs. Allison, Cameron of Wisconsin, Hamlin, Howe, Ingalls, McMillan, Morrill, and Saunders. So the resolution was agreed to. Mr. Eustis then appeared, and the oaths prescribed by law having been administered to him by the Vice-President, he took his seat in the Senate. [The debate is found on pages 82-87 of the Congressional Eecord, vol. vii, part 1. J COMPENSATION OF ME. PINCHBACK. Monday, April 17, 1876. Mr. Mitchell, from the Committee on Privileges and Elections, submitted a report (No. 274), accompanied by the following resolution. , [Resolution found at end of report. ] EEPOBT op committee. In the Senate of the United States. Apeil 17, 1876. — Ordered to be printed. Mr. Mitchell, from the Committee on Privileges aiid Elections, Submitted the follow- ing report: The Committee on Privileges and Elections, having under consideration the question of the allowance proper to be made to P. B. S. Pinch back, late a contestant for a seat in the Senate from the State of Louisiana, submit the following report: The great length of time that elapsed between the beginning of the term for which Mr. Pinchback was a contestant and the date of the final determination of that contest by the Senate, as also the remarkably close vote by which such contest was decided, have im- pressed your committee with the belief that the full measure of compensation which the uniform action of the Senate heretofore has given to contestants should be allowed in this case. Your committee are advised by the journals of the Senate that the rule established by this body in similar cases is the payment to the contestant of the amount he would have been entitled to receive in case he had been admitted and served the time the contest was pendii^; in other words, an amount equal to the compensation and mileage of a Senator for the time covered by the contest. A few citations will suffice to show the uniformity of this rule. O. B. Hart, contesting the seat of A. Gilbert, of Florida, was paid from the contingent fund from the 1st to 28th of April, 1870, under the following resolution, passed May 11, 1870 (Senate Journal, second session Forty-first Congress, pages 585 and 634) : 510 SENATE ELECTION CASES. ' ' Resolved, That the Secretary of the Senate be directed to pay, ojit of the contingent fund of the Senate, to O. B. Hart, claimant of a seat in the Senate from the State ol Florida, the usual mileage, of a Senator, and monthly pay from the date of jiresenting his credentials until the passage of the resolution declaring him not entitled to a seat. ' ' H. P. Farrow and E. H. Whitely, contesting respectively with J. Hill and H. V. M. Miller, from Georgia, were paid from the 16th of February, 1870, to Ifie 30th of January, 1871, under the Ibllowing resolution, passed February 25, 1871 (Senate Journal, third session Forty-first Congress, page 369) : '" Eesolved, That the Secretary of the Senate be directed to pay toH. P. Farrow and E. H. Whitely, contestants from the State of Georgia, compensation from the IGth day of February, 1870, the date of their election by the reorganized legislature of Georgia, to the 30th day of January, 1871, when the Senate decided they were not entitled to seats. ' ' Foster Blodgett, claiming a seat from the State of Georgia, was paid from March 4, 1871, to December 19, 1871, in pursuance of the following resolution, passed January 9, 1872 (Senate Journal, second session Forty-second Congress, page 94): "Sesolved, That the Secretary of the Senate be directed to pay, out of the pay and mileage account, to Foster Blodgett, claiming a seat as Senator-elect from the State of Georgia, the pay and mileage of a Senator irom March 4, 1871, to December 19, 1871, when the question of his right to his seat was determined by the Senate." Again, J. C. Abbott, of Noiih Carolina, contesting the seat of Senator Eansom, was paid from March 4, 1871, to the 23d of April, 1872, under the following resolution: "Besolved, That Joseph C. Abbott, late contestant for a seat in this body from the State of North Carolina, be allowed his salary from 4th of March, 1871, to the 23d of April, 1872, and one mileage each way." This resolution was passed April. 24, 1872. (See Senate Journal, second session Forty- second Congress, page 595. ) Numerous other citations might be adduced; these will sufiEice, however, to establish the uniform rule of the Senate. This committee, on the 8th of March, 1876, in reporting back Senate resolution No. 10, to pay Francis W. Sykes, of Georgia, contesting with Senator Spencer, the compen- sation and mileage of a Senator from the 4th day of March, 1873, to the 28th day of May, 1874, when said contest was decided, submitted (by Mr. Cooper) the following report: ' ' The rule established by the Senate in cases similar to the present one has been uniform. A person applying for a §eat in this body by reason of an election by the legislature of a State, although his application has been refused and another adjudged entitled to the seat, has been paid the ai&ount he would have been entitled to receive if he had been admitted and served the time the contest was pending. The action of the Senate upon such cases has been with such great unanimity as to call for little or no debate. The reasons therefor upon which the rule is based can only be surmised. It may be said the person claims his seat in pursuance of an implied duty imposed upon him to thus assert l3ie right of his State to be represented in this body, which duty he owes to the public, and the expenses incurred in the performance of a public duty should be paid out of the common treasury. "A proper respect for the action of a State in the choice of a Senator may also justify the rule. "The committee see nothing in the present case to take it out of the general rule; and therefore recommend the passage of the resolution." The case of Pinchback is (considering the final action of the Senate in the contests of the two cases) parallel with that of Sykes in this, that each claimed under an election by a body adjudged by the Senate afterward not to have been the legislature of the State. The case of Pinchback, however, is much the stronger from the fact that the alleged legislature from which Mr. Sykes claimed his election was never recognized as the legis- lature of the State of Alabama by any of the departments of Government, while liie Kellogg legislature of Louisiana, by which Mr. Pinchback was elected, was recognized as the legislature of that State not only by the State courts but by the Executive of the nation, and also by the national House of Eepresentatives, by admitting to its member- ship persons claiming seats under certificates from Governor Kellogg; and inferentially by the Senate, in the adoption of a resolution recognizing Kellogg as the governor of the State. In view of these judicial, executive, and legislative recognitions of the Kel- logg legislature, and of the fact that the Senate, after three years of discussion "and con- sideration, was so evenly divided on the ultimate question as to Mr. Pinchback's right to a seat, it would seem difficult to, imagine a stronger case of reasonable cause than that moving Mr Pinchback to make claim to a seat, and to persevere as he did in that claim for over three years. THE LOUISIANA CASES, 1873-80. 511 ^1.^?'^^*'°™"'***®,' *lierefore, in view of the precedents and the facts of this case, report the lollowing resolution and recommend its adoption: Resolved, That P. B. S. Pinehhack, late contestant for a seat in the Senate from the fetate 01 l^ouisiana, be allowed an amount equal to the compensation and mileage of a (senator trom the beginning of the term for which he was n contestant up to the period of the determination of the contest by the Senate. Satueday, July 1, 1876. The Senate proceeded to the consideration of the resolution to pay P. B. S. Pinchback, late a contestant tor a seat in the Senate from the State of Louisiana; and, On motion by Mr. Sargent, the Senate proceeded to the consideration of executiva business. [The debate is found on pages 4319-4323 of the Congressional Eecord, vol. iv, part 5.] „, „ . Monday, July 3, 1876. The Senate resumed, &c. [The debate is found on pages 4368-4372 of the Congressional Record, vol. iv, part 5.] "Wednesday, July 5, 1876. On motion by Mr. Morton, the Senate resumed the consideration of the resolution to pay P. B. S. Pinchback, late a contestant for a seat in the Senate- from the State of Lou- isiana; and. On motion by Mr. Merrimon to amend the resolution by striking out -all after' the word "resolved," and in lieu thereof inserting the following: "That the sum of $5,000 be allowed to P. B. S. Pinchback to pay the reasonable ex- penses incurred by him as contestant for a seat in the Senate as a Senator from the State of Louisiana," After debate, It was determined in the negative — yeas 10, nays 31. On motion by Mr. Merrimon, the yeas and nays being desired by one-fifth of the Sen- ators present, Those who voted in the affirmative are Messrs. Cookrell, Davis, Jones of Florida, Kelly, McCreery, McDonald, Merrimon, Norwood, Saulsbury, and Withers. Those who voted in the negative are Messrs. Alcorn, Allison, Anthony, Bruce, Cameron ofWisconsin, Conkling, Cragin, Dawes, Dennis, Dorsey, Edmunds, Ferry, Frelinghuysen, Hamlin, Harvey, Hitchcock, Howe, Ingalls, Logan, McMillan, Mitchell, Morrill of Maine, Morrill of Vermont, Morton, Paddock, Sherman, Spencer, Wadleigh, West, Win- dom, and Wright. So the amendment was not agreed to. On motion by Mr. Edmunds to amend the resolution by inserting at the end thereoi the words: "Besolved, That in cases of disputed claiims to seats in the Senate hereafter arising, no other or greater allowance shall be made te a defeated claimant than in such case shall seem to the Senate just; "Resolved, That in no case shall any pay be allowed to a Senator to begin earlier than the date of his election or appointment," It was determined in the affirmative. On motion by Mr. Spencer to amend the resolution by striking out all after the word "Louisiana," as reported by the committee, and inserting.; "and Francis W. Sykes, late a contestant for a seat in the Senate as a Senator from the State of Alabama, be each allowed an amount equal to the pay and mileage of a Senator 'from the beginning of the term for which they were respectively contestants up to the period of the determination of the respective contests by the Senate," it was determined in the affirmative. On motion by Mr. Mitchell to amend the resolution by inserting at the end of thefirst clause, ' ' and the amount required by this resolution to be paid out of the contingent fund of the Senate, " it was determined in the affirmative. On the question to agree to the resolution as amended, as follows: "Resolved, That P. B. S. Pinchback, late contestant for a seat in the Senate from the State of Louisiana, and Francis W. Sykes, late a contestant for a seat in the Senate as a Senator from the State of Alabama, be each allowed an amount equal to the pay and mileage of a Senator from the beginning of the term for which they were respectively contestants up to the period of the determination of the respective contests by the Sen- ate; and the amount required by this resolution to be paid out of the contingent liindof the Senate; "Resolved, That in eases of disputed claims to seats in the Senate hereafter arising no 512 SENATE ELECTION CASES. other or greater allowance shall be made to a defeated claimant than in such case shall seem to the Senate just; ' 'Besolved, That in no case shall any pay he allowed to a Senator to begin earlier than the date of his election or appointment," It was. determined in the affirmative — yeas 27, nays 11. On motion by Mr. Mitchell, the yeas and nays being desired by one-fifth of the Sena- tors present, Those who voted in the affirmative are Messrs. Alcorn, Allison, Anthony, Bruce, Cam- eron of Wisconsin, Conkling, Cragin, Dawes, Ferry, Frelinghuysen, Harvey, Hitchcock, Howe, Logan, McMillan, Mitchell, Morrill of Maine, Morrill of Vermont, Morton, Pad- dock, Sargent, Sherman, Spencer, Wadleigh, West, Windom, and Wright. Those who voted in the negative are Messrs. Cockrell, Davis, Gordon, Kelly, Key, McCreery, McDonald, Merrimon, Norwood, Saulsbury, and Withers. So the resolution was agreed to. [The debate is found on pages 4382-4400 of the Congressional Record, vol. iv, part 5.] SPOFFORD vs. KELLOGG (MANNING). Contest for seatfw term beginning March 4, 1877. Satueday, January 20, 1877. Mr. Morton presented the credentials of William Pitt Kellogg, elected a Senator by the general assembly of the State of Louisiana for the term of six years commencing March 4, 1877. , The credentials were read. [Special session of Senate, March, 1877.] Monday, March 5, 1877. Mr. William Pitt Kellogg, whose credentials were heretofore presented as a Senator from the State of Louisiana, having appeared to take the oaths of office, Mr. Bogy objected to the oaths of office being administered to Mr. Kellogg; Whereupon Mr. Anthony submitted the following resolution; which was considered by unanimous consent, and agreed to: "Eesolved, That the credentials of Senators-elect in all disputed or contested cases lie upon the table until to-morrow." [The debate is found on pages 1, 2 of the Congressional Record, vol. vi.] Tuesday, March 6, 1877. Mr. Blaine submitted the following resolution for consideration: "Resolved, That the oaths prescribed by law be now administered by the Vice Presi- dent to William Pitt Kellogg, whose credentials as a Senator ftom, the State of Louisiana were presented on the 20th of January, 1877. ' ' On motion by Mr. Bayard to amend the resolution by striking out all after the word ' ' resolved, ' ' and in lieu thereof inserting ' ' the credentials of William Pitt Kellogg, claim- ing to be a Senator from the State of Louisiana, do now lie upon the table until the ap- pointment of a Committee on Privileges and Elections, to whom they can be referred," Pending debate. On motion by Mr. Thnrman (at 3 o'clock and 15 minutes p. m.), the Senate ad- journed. -. [The debate is found on pages 15, 16 of the Congressional Record, vol. vi.] Wednesday, March 7, 1877. The Senate resumed the consideration of the resolution of Mr. Blaine; and Mr. Bayard having modified his said amendment, on the question to agree thereto, as follows, viz: Strike out all after the word "resolved," and in lieu thereof insert "the credentials of William Pitt Kellogg, claiming to be a Senator from the State of Louisiana, do now lie upon the table until the appointment of a Committee on Privileges and Elec- tions, to whom they shall be referred," After debate. It was determined in the affirmative — yeas 35, nays 29. On motion by Mr. Sargent, the yeas and nays being desired by one-fifth of the Sen- ators present. Those who voted in the affirmative are Messrs. Bailey, Barnum, Bayard, Bogy, Booth, THE LOUISIANA CASES, 1873-80. 51 3 Bumside, Christiancy, Coke, Conkling, Davis of Illinois, Davis ofWest Virginia, Dennis, Eaton, Garland, Gordon, Harris, Hereford, Hill, Johnston, Jones of Florida, Jones of Nevada, Keman, Lamar, McCreery, McDonald, McPherson, Maxey, Morrill, Eandolph, Hansom, Saulsbury, Thnrman, Wallace, Whyte, and Wilhers. Those who voted in the negative are Messrs. Allison, Anthony, Blaine, Bruce, Cam- eron of Pennsylvania, Chaffee, Conover, Dawes, Dorsey, Hamlin, Hoar, Howe* Ingalls, Kirkwood, McMillan, Mitchell, Morton, Oglesby, Paddock. Patterson, Plumb, Rollins, Sargent, Saunders, Sharon, Sherman, Teller, Wadleigh, and Windom. So the amendment was agreed to. On the question to agree to the resolution as amended, as follows: "Unsolved, That the credentials of "William Pitt Kellogg, claiming to be a Senatoi from the State of Louisiana, do now lie upon the table until the appointment of a Com- mittee on Privileges and Elections, to whom they shall be referred," It was determined in the afarmative — yeas 42, nays 21. On motion by Mr. Blaine, the yeas and nays being desired by one-fifth of the Senators present. Those who voted in the affirmative are Messrs. Anthony, Bailey, Bayard, Bamum, Beck, Bogy, Booth, Bumside, Christiancy, Conkling, Conover, Davis of Illinois, Davis or West Virginia, Dawes, Dennis, Dorsey, Eaton, Garland, Gordon, Harris, Hereford, Hill, Hoar, Johnston, Jones of Florida, Jones of Nevada, Keman, Lamar, McCreery, McDon- ald, McPherson, Maxey, Morrill, Paddock, Eandolph, Eansom, Sargent, Saulsbury, Thur- man, Wallace, Whyte, and Withers. Those who voted in the negative are Messrs. Allison, Blaine, Bruce, Cameron of Penn- sylvania, Chaffee, Hamlin, Ingalls, Kirkwood, McMillan, Mitchell, Morton, Oglesby, Pattereon, Plumb, EoUins, Sannders, Sharon, Sherman, Teller, Wadleigh, and Windom. So the resolution was agreed to. [The debate is found on pages 17-23 of the Congressional Eecord, vol. vi. ] "[First session of the Forty-fifth Congress.] Wednesday, October 17, 1877. Mr. Thurman presented the credentials of Henry M. Spofford, elected a Senator by the legislature of the State of Louisiana for the term of six years commencing March 4, 1877. The credentials were read. Mr. Thurman then submitted the following resolution, and asked for its present con- sideration: "Besolved, That Henry M. Spofford, whose credentials as a Senator from the State of Louisiana have been this day read, be now sworn and admitted as such Senator." Mr. Edmunds objected to the consideration of the said resolution this day, and raised the point of order that under the thirty-third rule of the Senate, which requires that all resolutions shall lie over one day for consideration, the resolution could not now be considered. The Vice-President overruled the point of order raised by Mr. Edmunds, and decided that under the seventh rule of the Senate the presentation of the credentials of a Sena- tor being a question of privilege, all questions and motions arising thereon were in order at this time, and that the consideration of the resolution could now be proceeded with. On motion of Mr. Mitehell to amend the resolution by striking out all after the word ' ' resolved, ' ' and in lieu thereof inserting: "That the credentials of Henry M. Spofford, claiming to be a Senator from the State of Xouisiana, be referred to the Committee on Privileges and Elections," After debate, . Ordered, That the farther consideration of the said resolution be postponed to to- morrow. Mr. Edmunds submitted the following resolution for consideration: "Besolved, That the Committee on Privileges and Elections be discharged from the further consideration of the credentials of William Pitt Kellogg as a Senator from the State of Louisiana, now under its consideration:" On motion by Mr. Thurman, the Senate proceeded to the consideration of executive business. [The debate is found on pages 78-83 of the Congressional Eecord, vol. vi.] Thuksday, October 18, 1877. The Senate proceeded to consider the resolution yesterday submitted by Mr. Thurman, SEC 33 514 SENATE ELECTION CASE^. to admit Henry M. Spofford to a seat in the Senate as a Senator from the State of Lou- isiana; and , The question being on the amendment proposed by Mr. Mitchell, viz: Strike out all after the word "resolved," and in lieu thereof insert the following: * "That the credentials of Henry M. Spofford, claiming to be a Senator from the State of Louisiana, be referred to the Committee on Privileges and Elections," After debate, On the question to agree thereto, it was determined in the affirmative — yeas 36, nays 33. On motion by Mr. Edmunds, the yeas and days being desired by one-fiftt of the Sen- ators present, Those who voted in the affirmative are Messrs. Allison, Anthony, Blaine, Booth, Bruce, Burnside, Cameron of Pennsylvania, Cameron of Wisconsin, Chaffee, Christiancy, Conk- ling, Conover, Dawes, Dorsey, Edmunds, Ferry, Hamlin, Hoar, Howe, Ingalls, Jones of Nevada, Kirkwood, McMillan, Matthews, Mitchell, Morrill, Oglesby, Paddock, Patter-- sou. Plumb, Eollins, Sargent, Saunders, Spencer, Teller^ and Wadleigh. Those who voted in the negative are Messrs. Armstrong, Bailey, Barnum, Bayard, Beck, Cookrell, Coke, Davis of Illinois, Davis of "West Virgiuia, Dennis, Eaton, Garland, Gordon, Grover, Harris, Hereford, HUl, Jones of Florida, Keman, Lamar, McCreery, McDonald, McPherson, Maxey, Merrimon, Morgan, Eandolph, Eansom, Saulsbury, Thurman, "Wallace, "Whyte, and "Withers. So the amendment was agreed to. ?> On motion by Mr. "Whyte farther to amend the resolution by adding thereto the words "and that said committee report thereon on or before the 1st day of November, 1877," After debate. It was determined in the negative — yeas 31, nays 35. Ou motion by Mr. "Whyte, the yeas and nays being desired by one-fifth of the Sen- ators present, • Those who voted in the affirmative are Messrs. Bailey, Barnum, Bayard, Beck, Coke, Diivis of Illinois, Davis of "West "Virginia, Dennis, Eaton, Garland, Gordon, Grover, Har- ris, Hereford, Hill, Jones of Florida, Keman, Lamar, McCreery, McDonald, McPherson, Maxey, Merrimon, Morgan, Eandolph, Eansom, Saulsbury, Thurman, Wallace, Whyte, and Withers. Those who voted in the negative are Messrs, Allison, Anthony, Blaine, Booth, Bruce, Burnside, Cameron of Pennsylvania, Cameron of Wisconsin, Chaffee, Christiancy, Conk- ling, Conover, Dawes, Dorsey, Edmunds, Ferry, Hamlin, Hoar, Howe, Ingalls, Jones of Nevada, Kirkwood, McMillan, Matthews, Mitchell, Morrill, Oglesby, Paddock, Patter- son, Rollins, Sargent, Saunders, Spencer, Teller, and Wadleigh. So the amendment was not agreed to. On motion by Mr. Conkling to further amend the resolution by adding thereto the following: "and the said committee shall also consider and report upon the credentials of William Pitt Kellogg," it was determined in the affirmative; and The resolution as amended was then agreed to, as follows: ' ' Resolved, That the credentials of Henry M. Spofford, claiming to be a Senator from the State of Louisiana, be referred to the Committee on Privileges and Elections; and the said committee shall also consider and report upon the credentials of William Pitt Kellogg."- The Senate proceeded to consider the resolution yesterday submitted by Mr. Edmunds to discharge the Committee on Privileges and Elections, from the further consideration of the credentials of William Pitt Kellogg; and Mr. Edmunds wdthdrew the said resolution. [The debate is found on pages 99-108 of the Congressional Eecord, vol. vi.] • ThuesdAy, Oclober 25, 1877. Mr. Mitchell submitted the following resolution; which was considered by unanimous consent, and agreed to: ' ' Resolved, That the Committee on Privileges and Elections in the contested cases of William Pitt Kellggg and Henry M. Spofford, claiming seats as Senators from the State of Louisiana, and whose credentials have been referred to such committee, be author- ized to send for persons and papers 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." Monday, Noi-emhcr 26, 1877. Mr. Wadleigh, from the Committee on Privileges and Elections, to whom were re- ferred the credentials of William Pitt Kellogg and the credentials i)f Henry M. Spofford, THE LOUISIANA CASES, 1873-80. 515 claimiDg seats as Senators from the State of Louisiana, submitted a report (No. 16) thereon, accompanied by the following resolution: Besolveil, That William Pitt Kellogg, is, upon the merits of the case, lawfully en- titled to a seat m-the Senate of the United States iiom the State of Louisiana for the term of SIX years commencing on the 4th day of March, 1877, and that he he admitted thereto upon taking the proper oath. r/'-^^Tlr^' Tiiat. Henry M. Spofford is not entitled to a seat in the Senate of the United States. ' ' Mr. Merrimon asked and obtained leave of the Senate to submit the views of a mi- nority 01 the Committee on Privileges and Elections on the credentials of William Pitt Kellogg and the credentials of Henry M. Spofford; which were ordered to be printed to accompany the report of the committee. EEPOET OF COMMITTEE.* [The comimittee consisted of Messrs. Ayadleigh (chairman), Mitchell, Cameron of Wisconsin, McMillan, Hoar, Ingalls, Saulsbnry, Merrimon, and Hill.] In the Senate of the United States. NovEMBEK 26, 1877.— Ordered to be printed. Mr. Wadleigh, from the Committee on Privileges and Elections, submitted the follow- ing report: The Committee on Privileges and Elections, to whom were referred the credentials of William Pitt Kellogg and the credentials of Henry M. Spoiford, for the same seat in the Senate of the United States, ask leave to submit the following report: Mr. Kellogg' claims to have been elected on the 10th day of January, 1877. Mr, Spofford claims to have been elected on the 24th of April, 1877. In an inquiry into theae cases upon their merits, the tirst question which arises is, whether the body which elected Mr. KeUogg was the lawful legislature of Louisiana at the time of such election. There was in said State on the 6th of November, 1876, an election lor governor, lieu- tenant-governor, and members of the general assembly. The statements of the votes cast at such election were required by law to be sent to a board of returning oflicers foi all elections in the State. Said, returning officers were by law authorized and required to ascertain, return, and certify the election of members of the general assembly. No other tribunal was clothed with that power or duty. They were required to report their decisions to the secretary of state, and it was by law provided that the secretary of state should transmit to the clerk of the house of representatives and secretary of the senate of the last general assembly a list of the names of such persons as, according to the decisions of the returning oflScers, were elected to either branch of the general assembly. It was the duty of the said clerk and secretary to place the names of such persons so famished upon the roll of the house and senate, respectively, aud those representatives and senators whose names were so placed by the clerk and secretary, and none others, were competent to organize the house of representatives or senate. The secretary of state, in obedience to the statute, transmitted to the clerk of the former house and secretary of the senate a list of the names of persons by the said return- ing officers decided to hav^e been elected to either branch of the general assembly, and from the list thus furnished the clerk and secreta,ry organized each house of the State legislature on the 1st day of January, 1877. By the constitution of Louisiana the house of representatives is composed of one hun- dred and twenty members and the senate of thirty-six members. There is no doubt that sixty-one members of the house constitute a quorum of that body, and that nineteen members constitute a quorum of the senate. There were present at the organization, and took part in the proceedings, eigl^f senators holding over,.and eleven newly elected — nineteen in all^-having the certificates of said returning officers, which was a quorum, and sixty-eight representatives, thiis declared to have been elected, being seven over a quorum. After such organization the members of the two houses assembled in joint con- vention on the 10th day of January, 1877, to elect a Senator of the United States. Upon reading the journal of each house it was found that no election of Senator had been made the day before. The roll of each house was called, and it was found there were present in the joint convention seventeen senators and sixty-six representatives, they composing a majority of all the members of the general assembly of the State. Nom- inations were then made for Senator, and a rim voce vote was had, and William Pitt Kellogg received the votes of seventeen senators and sixty-six representatives, and was declared by the president of the senate (the presiding officer of the joint convention) to * Taken from Senate Eeportg, ist sess. 45th Cong., No, 16. 516 Senate election cases. have received a majority of all the votes of the general assembly, and to have been duly elected a Senator of the United States for the term of six years beginning on the 4th day of March, 1877. -, Your committee find that said election was held strictly in accordance vrith the act of Congress of 1866 to regulate the times and manner of holding elections for Senator. The credentials of Mr. Kellogg are signed by Stephen B. Packard as governor of the State of Louisiana, and bear date the 11th day of January, 1877. It appears to your committee that Mr. Packard vpas on that day the lawful governor of the State of Louisiana. By the constitution of Louisiana the returning officers are required to seal up and transmit the returns of the election of governor and lieutenant- governor to the secretary of state, who shall deliver them to the speaker of the house of representatives on the second day of the session of the general assembly then to be holden. On the second day of the session the legislature proceeded to count the votes for gov- ernor and lieutenant-governor, there being then present twenty-one senators and sixty- eight representatives, two over a quorum of the senate and seven over a quorum of the house. The committee appointed by the two houses to make and canvass the votes for governor and lieutenant-governor reported that Stephen B. Packard was elected governor and C. C. Antoine lieutenant-governor of said State, and that by the following vote: Tor governor: Stephens. Packard ..- - 74,624 Francis T. Nicholls -- — 71,198 For lieutenant-governor: C. C. Antoine 74,669 L. A. Wiltz , 71,093 Upon the facts hereinbefore stated your committee are of the opinion — First, that the returning officers of Louisiana were a lawful tribunal, solely authorized and required to ascertain, return, and certify to the election of members of the general assembly. Second, that those, and only those, who held certificates of, election from said retnm- ing officers were entitled to seats in the general assembly at the organization thereof. Third, that the body which first organized with a quorum of the members in eacb branch thereof, having such certificates, and which was duly recognized by the lawful gov- ernor of said State, was the lawful legislature. The proof before your committee seems conclusive that at the time the legislature which elected Kellogg was organized there were present a quorum of each house thereof then lawfully entitled to seats therein ; that at the time of his election there were present a quorum of the general assembly then lawfully entitled to seats therein; all of whom voted for said Kellogg, and that said legislature was recognized by the lawful governor of said State. It was, however, contended by Mr. SpofFord that it was the duty of your committee to go behind the certificates of the returning officers and investigate the elec- tions of individual members of the general assembly. At his request your committee did investigate such elections and find the following facts: Of the lawful election of fifty-seven members of the house of representatives which aided in electing Mr. Kellogg there is no dispute whatever, and they now sit in the Nicholls house, which took part in the election of Mr. Spoffbrd. Three more of the members of the Packard house, from the parish of Orleans, were until recently admitted on all hands to have had a majority of the votes cast, and your committee find that they were lawfully elected. Besides these sixty members of the house, there were eleven more whose election is disputed by Mr. Spofiford upon the ground that they did not receive a majority of the votes cast. Of the twenty-one members of the senate which participated in the election of Mr. Kellogg, there were sixteen whose right to hold their seats is ad- mitted. The election of three more frorn the twelfth, eighteenth, and twenty-second senatorial districts is disputed upon the ground that they did not receive a majority of the votes cast. Two more, Baker and Kelso, were not declared elected by the returning board, but were seated by a vote of the senate acting under its constitutional right to judge of the election of its own members. Complaint is made by Mr. Spofford that one Steven, a lawfui senator, was taken against his will into the senate and detained there against his will for the purpose of making a quorum. Your committee believe there is no good reason for such complaint. If the senate had organized with a quorum of members lawfully entitled to seats therein, as was the case, it had the undoubted right to compel the attendance of absent members. The senators and members whose title to seats is disputed on the ground that they did not receive a majority of the votes cast were those declared elected by the returning THE LOUISIANA CASES, 1873-80. 517 board on account of the rejection of the votes cast at certain polls in the parishes of East Baton Rouge, De Soto, West Feliciana, La Fayette, Morehouse, Ouachita, and Webster, in the twelfth senatorial district, composed of the parishes of East Feliciana, West Feli- ciana, and Point Coup6e; the eighteenth senatorial district, composed of the parishes of Ouachita and Caldwell; and the twenty-second senatorial district, composed of the par- ishes of Natchitoches, De Soto, Eed River, and Sabine. There were no votes rejected in the parishes of Sabine, Point Couple, and Red River. A comparatively small number of the votes were rejected on account of the obvious ille- galities, informalities, aud misconduct of the election officers, and there is little complain t- on account of the.rejection of such votes. The rest were rejected on account of violence and intimidation which prevented a fair election. The evidence of such intimidation is overwhelming and irrefutable. Many of the Republican leaders were killed, others were tortured, others driven into exile. Companies of armed men paraded the parishes by night, carrying terror wherever they went. Your committee has no space to recountor refer toa tithe of the horrible outrages per- petrated to prevent the Republicans from exercising the free right of suffrage. They were evidently perpetrated in localities where the result of the election would thereby be most strongly affected, and they had their intended effect. But for these numerous and horrible crimes, your committee believe that the candidates upon the State and National Republican ticliets would have been elected beyond dispute, and that the gen- eral assembly would have been overwhelmingly Republican. In forty parishes, where it is admitted on all hands the election was fair and peace- able, Ihe colored registration in 1876 numbered '87,999, tlie white registration 72,034, showing a colored majority of 15,96.'5. Those forty parishes returned 65,747 Republican votes and d9,?i'.)-2 Democratic votes, a Republican majority of 6,353 votes. In the seven- teen terrorized parishes the colored registration was 27,269, the white registration was 20,320, a colored majority of 6,949, almost half as large as the registered colored mar jority in all the rest of the State. But the vote in those seventeen parishes as cast showed but 10,970 Republicans and 21,123 Democrats. Thus those seventeen parishes, with a colored majority of nearly 7,000 registered, cast a Democratic majority of 10,153. In the ten parishes of East Baton Rouge, Caldwell, Do Soto, East Feliciana, West Feli- ciana, La Fayette, Morehouse, Natchitoches, Ouachita, aud Webster, in which (on account of the rejection of polls by the returning board) the-eleven disputed members of the house and three disputed members of the senate were declared elected by the returning officers, there were in 1870 19,174 colored voters and 11,212 white voters registered, being a colored majority of 7,962. In the same parishes there were cast 14,510 Democratic and 8,489 Republican votes, being a Democratic majority of 6,031. lu the strong Republican parish erf East Felici- ana, where leading Republicans had been terrorized into i)rocaring the appointment as sheriff of a Democratic leader, whose cireer had been that of a brigand, upon his prom- ise of peace and conciliation, only three Republicans dared to vote. There is no evidence to show and it is not pretended that the same arguments and methods of persuasion were not employed by the Democrats in the Ibrty parishes above referred to as were used in the seventeen terrorized parishes; but in the seventeen parishes numerous aud frightful crimes were deliberately perpetrated to carry the election; in the others not. The difference in the vote shows too strongly to be affected by argument or clouds of perjured witnesses the perpetration of such outrages and their elfect. if was contended by Mr. Spofiford beibrc your committee that the returning officers were guilty of fraud in rejecting the polls hereinbefore referred to, and that in so doing they exceeded the authority conferred upon them by law. Your committee find, how- ever, that the returning board in so doing acted not fraudulently but in good faith; and that'in their construction of the law under which they acted they were sustained by precedents and by able legal opinions. They were charged by Mr. Spofford with having committed forgery in altering the statement of votes from the parish of Vernon Testimony in reference to that matter was taken at great length by the Field and Morrison committees of the House and the Howe committee of the Senate. It clearly and conclusively shows, in the opinion of your committee, that the returning officers had no motive to commit such crime; that they before had published the true statement of t he vote, and must therefore have known that if such a crime was committed it would bo immediately detected; and that the real the only criminal, was the witness by whose hand the alterations were made, who confessed that he did not know the true vote had been published, who had the strongest personal motives to coinmit the crime, and who testified with the understanding that he should have a good office if Mr. Tilden was elected' But the law is clear that, even had the returning officers been guilty of fraud, or had mistakenly exceeded their authority, it was the right and the duty of the persons returned by them as elected to take their seats in the general assembly. The law on this point 518 ^ , SENATE ELECTION CASES. is thus laid down by Cushiag in his Law and Practice of Legislative .Assemblies, page .52, section 141: "It remains to he observed, in conclusion, that the proceedings of these [returning] oflicers, from the necessity of the case, are, in the first instance, uncontrollable by any other authority whatever; so that if, on the one hand, notwithstanding an election has been eifected, the returning officers refuse or neglect to make the proper return, the party thereby injured is without remedy or redress until the assembly to which he is chosen has examined his case and adjudged him to be duly elected; and, on the other hand, if the returning officers make a return when no election has in fact taken place, or of one who is not eligible, -the person returned will not only be entitled, but it is his duty, to assume and discharge the functions of a member until his return and election are ad- judged void." A strong case in point occurred in the State of New Hampshire in 1875. The governor and coim.cil of that State, whose duty it was to count the votes for and issue certificates of election to State senators, rejected and threw out 3,771 votes, being all those cast and returned for Natt Head, a candidate for senator, upon the ground that the name by which he had been universally known, by which he had been commissioned adjutant- general of the State, and which he had regarded and u^ed as his real name during many years of business and political life, was not his tiall Christian name. They also threw out and rejected 46 votes cast for Author Bearing, also a candidate for senator, on the ground that heiwas not a resident of the State. By such action thegovernor and council were enabled to give certificates of election to James Priest and John Proctor, thus giviug the Democrats the control of the senate. Application was made to the supreme court of the State, as provided for by the constitution, for the opinion of said court upon the effect of such action. In their opinion, which may be found in the fifty-sixth volume of New Hampshire Reports, the court>say : " By this action of the governor and council, whether it be regarded as within or ex- ceeding their constitutional powers, Messrs. Priest and Proctor received the usual cre- dentials, which authorized them to assemble with the other ten senators and take the oath of office; and they thereupon became senators, subject to the constitutional author- ity of the senate as final judges of the qualifications and elections of its members." When your committee decided to go behind the certificates of the returning officers, and to seek the real merits of the case in (he thousands of pages of printed testimony taken for the use of the Senate and House, Mr. Spofford contended that your committee should simply ascertain the number of votes deposited in the ballot-boxes at the election. Your committee believe, however, that if their inquiry is to extend beyond the question as to who were the lawful governor of Louisiana and the lawful memlsers of the general assembly, it should go far enough to ascertain how far the freedom of election was im- paired by intimidation, violence, and crime. The law on this subject is thus stated by Cushing in his Law and Practice of Legislative Assemblies, pages 67, 68, section 181: "The great principle, which lies at the foundation of all elective governments, and is essential indeed to the very idea of election, is that the electors shall be Iree in the giv- ing of their suffrages. This principle was declared by the English Parliament, with regard to elections in general, in a statute of Edward I, and with regard to elections of members of Parliament, in the Declaration of Rights. The same principle is asserted or implied in the constitutions of all the States of the Union. Freedom of election is vio- lated by external violence, by which the electors are constrained, or by bribery, by which their will is corrupted; and in all cases where the electors are prevented, in either of these ways, from the free exercise of their right, the election will be void without reference to the number of votes thereby affected." The evidence clearly proves, and your committee believe, that by intimidation, vio- lence, and crime freedom of election was utterly destroyed at those polls in the ten par- ishes heretofore referred to, whose votes were rejected by the returning officers; that in throwing out such polls and declaring the Republican candidates elected, the returning officers did that which they believed to be legal, and which was really equitable and just, and what the two houses of the general assembly would have been bound in law to do with the facts before them. They believe, therefore, that the members by whose votes the general assembly was organized, and a sufficient number of the members by whose votes Mr. 'Kellogg was elected, were not only lawfully but equitably entitled to their seats. It is- contended by Mr. Spofford that the legislature which elected Mr. Kellogg and • the governor who signed his credentials have vanished from political existence, and ceased to have any authority in the State of Louisiana, and that, therefore, if for no other reason, his own election is valid. Your committee find that at and after the organization of the legislature which electedMr. Kellogg an. over whelming array of armed and- organ- ized military force was used to destroy and crush out the lawful State government of Louisiana. By it the courts were overthrown and annihilated, and under its constantly THE LOUISIANA CASES, 1873-80. 519 impending menace the lawful legislature gradually melted away, and its terrorized mem- ber sought safety in the so-called NichoUs legislature or abdicated their rights. By such, and perhaps other equally illegal means, the so-called Nicholls legislature at length came to contain an undisputed majority of the members lawftilly elected to the general assembly; and on the 24th day of April that legislature chose Mr. Spoiford, the contestant, a Senator of the United States. Your committee are of the opinion that his claim IS not well founded. Until and after the election of Mr. Kellogg, Governor Pack- ard, and what is known as his legislature, were de facto and dcjure the government of Louisiana. Upon that legislature devolved the duty of electing a Senator of the United States. That duty was performed by them in the election of Mr. Kellogg. No subse- quent events, especially successful revolution, through treasonable force, could undo what had been lawfully done. The doctrine contended for by Mr. Spofford, if established, wonid render insecure aU political vested rights. It would offer a premium to overthrow by force the result of every sharply contested election, and at no distant day reduce this country to the unhappy condition of those wretched commu»ities which are continually a prey to disorder and civil war. Tour committee therefore renort the following resolutions, and recommend their pas- sage: Resolved, That William Pitt Kellogg is, upon the merits of the case, lawfully entitled to a seat in the Senate of the United States from the State of Louisiana ibr the term of six years, commencing on the 4th day of March, 1877, and that he be admitted thereto upon taking the proper oath. Resolved, Tha-t Henry M; Spofford is not entitled to a seat in the Senate of the United States. VIEWS OF THE MINORITY. On the 18th day of October last the Senate referred to the Committee on Privileges and Elections a resolution, of which the following is a copy: ^'Resolved, That the credentials of Henry M. Spofford, claiming to be a Senator from the State of Louisiana, be referred to the Committee on Privileges and Elections; and the said committee shall also consider and report upon the credentials of William Pitt Kellogg." That committee having had the su'bject embraced by that resolution under consider- ation, a majority of the comniittee have agreed to a report in favor of seating Mr. Kel- logg as Senator. The undersigned, members of the committee, do not concur in that report and beg leave to submit to the Senate some of the reasons which impel them to dissent. An election was held in the State of Louisiana on the 7th day of November, A. D. 1876, for a governor and members of the legislature. Francis T. Nicholls and Stephen B. Packard each claimed that he was elected governor bX that election, and on and after the 8th day of January last each claimed to be the governor of that State. Two rival bodies of men composed of persons claiming to have been elected at that election were organized on the 1st day of January last in the city of New Orleans, and each claimed to be the lawful legislature of the State, one of these, bodies commonly called "the Nicholls legislature" and the other "the Packard legislature." This conflict of claim, aggravated by the recollections of like repeated contests in the past, produced general angry commotions among the contestants and the people which seriously threatened the peace of society and a state of anarchy. Detachments of the Army of the United States were employed for many weeks to preserve the peace and prevent bloodshed. It will not be denied that the people of that State of all classes and conditions were profoundly and fearfully agitated. ' At length this conflict and contest of claim was peacefully settled, and Mr. Nicholls was and ever since that time has acted and been recognized as governor by. all the co- ordinate branches of the State government and the people generally^and also by the President and other authorities of the United States having occasion to recognize and communicate with the governor of that State. And what has beeii designated as "the Nicholls legislature ' ' has likewise been so recognized as the lawful and only legislature, and its acts purporting to be statutes, passed since its first organization, have been reg- ularly published and recognized as laws of that State by aU departments of the State government and the people. Throughout the State the so-called ' ' Packard legislature ' ' has entirely disappeared, and most of its members — all 'those lawfully elected — have taken seats in the lawful legislature. This settlement has happily brought peace, order, and wholesome government out of fearful strife and disorder. It seetas to be gratefully accepted by the great mass of the people of that State of both colors, and the few mal- contents, if any, are moved by considerations of personal interest. After the settlement referred to, ' ' the Nicholls legislatture ' ' elected Henry M. Spofford to be a Senator in the United States Senate, "the Packard legislature" having a few 520 SENATE ELECTION CASES. days after its pretended organization, on the day of January iast, pending the con- test, and in the midst of disorder, purported to elect Mr, Kellogg Senator. Indeed, the facts and circumstances point strongly to the conclusion that the main if not the only purpose of "the Packard legislature" organization was to elect Mr. Kellogg Senator. But be this as it may, the body that undertook to elect him had no legal existence, as will hereafter appear. He purported to be elected pending a heated- contest as to its legality, and since that time it has abandoned its organization and claim, and most of its members went into and became part of ' ' the Nicholls legislature, ' ' and voted for Mr. Spofford. Looking to the permanent peace and well-beingof the people of Louisiana, after many years of discord and strife which have agitated the people of the whole Union, as well as the strict right, the undersigned deemed it important in the highest degree that the Senate should accept that settlement, made by the authorities and accepted by the peo- ple, as a finality; and, looking to that end, Mr. Hill in committee offered a resolution in these words: "The controversies heretofore existing in the State of Louisiana as to which of two rival bodies was the legislature of that State and as to which of two rival claimants was the governor of said State having been settled by the State itself since the last ai^oum- ment of the Senate, '' Resolved, That the Senate do recognize and accept said settlement as final." This resolution was rejected by the unanimous vote of the Republicans of the commit- tee, while it received only ihe votes of the undersigned. "We solemnly protest against re- opening political controversies in Louisiana, and sincerely deplore the occasion for doing so. Let the grave responsibility rest with those who have insisted upon doing so. Themajority of the committee having thus determined to ignore the settlement referred to, it was then deemed necessary to examine fully and fairly the real merits of the claims respectively of Messrs. Spofibrd and Kellogg; and with that view Mr. Merrimon in com- mittee offered a resolution in these words: "Besolved, That the committee proceed to examine and ascertain the substantial merits of the respective claims of Hon. W. P. Kellogg and Hon. H. M. Spofford to a seat in the Senate as a Senator from the State of Louisiana, and to this end to iiiquire particularly which, or whether either, of the two rival bodies claiming to be the legislature of said State, in January and April last, was the true and lawful legislature of said State. ' ' This resolution was unanimously adopted after hearing the contestants at length, Mr. Kellogg being heard by his counsel, Mr. Shellabarger. The contestants were each re- quested to indicate what testimony he desired to produce, and after debate they were re- quested to confer and see what state of facts they could agree upon touching controverted material points at issue. Statements were submitted to Mr. Kellogg touching the result of the election in parishes indicated, and Mr. Kellogg made a statement in that respect in reply. These statements wete received as evidence, and it was further agreed to receive the testimony, or so much thereof as may be pertinent, taken by Congressional commit-" tees commonly known as the "Howe committee," the "Morrison committee," the "Sherman committee," and the "Field committee," touching Louisiana affairs. Mr. Spofford did not object to the reception of this testimony, but he strenuously insisted on being allowed to take testimony in support of the several allegations specified by him,. as follows: He offered testimony to prove — "1. That the facts relative to the election of Tremoulet, Cressy, and Rolle, from the seventh representative district of New Orleans, were sustantially as set forth in the statement read by H. M. Spofford in his argument before this committee on the 24th October, 1877: ' ' 2. That the composition, votes for Senator, and poetical proclivities of the legislature on the 24th April, 1877, when H. M. Spofford was elected Senator, were substantially as set forth in the aibresald argument. "3. That by the actual returns or statements as made in duplicate by the supervisors of registration (and assistant supervisors), with their appointees, the commissioners of election, and sentj on,e set to the clerk of the district court of each parish in the county and to the secretary of state in the city, and the other set to the returning board (so called), showed a majority of votes actually cast throughout the State of about 8,000 votes for Nicholls and Wiltz over Packard and Antoine for the ofSces of governor and lieutenant-governor in the election that took place in Louisiana November 7, 1876. "4. Besides these specific violations of the constitution and of the law under whicli they pretended to act, I charge that the conduct of the returning officers in suppressing polls and changing the result of the constitutional returns was_ clandestine, collusive, tyrannical, and unjust; that the real work of conducting an election under pretext of compiling votes was proceeded with in a secret chamber by a corps of partisan cleiks, while the occasional, open sessions of the board were side-.shows, devised to screen what was going on within; that arbitrary rules of evidence were established for pretended con- THE LOUISIANA CASES, 1873-80. 521 tests, and changed so often and abruptly that no fair trial could be had or was had before the board; that illegal complaints were constantly received and illegal evidence admit- ted lor the purpose of setting aside polls that were in the way of such candidates as the board desired to elect; and that Mr. Kellogg himaelf, then governor, joined in making Illegal complaints and inducing the board to consider them. 5. I am informed and so charge that the returns from Vernon Parish, after they came into possession of the returning oflScers, and while they were under their control, were JS^i 4V. 1 ^ altered by a change of figures, tantamount to a forgery of a public- record; that the board knew what the figures upon those returns were bolbre their alteration, and yetafter the alteration promulgated the results of said forgery as the true returns; that by such fraudulent alteration E. E. Smart, candidate ibr representative in the State assem- bly, who had in fact and according to the returns as they first came to the board defeated his competitor. Brown, was left behind, and Brown, the defeated candidate, falsely de- clared elected; and that said Brown took his seat in the Packard house, and figures on the journal as present on the 2d of January, 1877, when there was a pretended count of votes for governor and lieutenant-governor in joint assembly, and perhaps on one or two other occasions, but that he afterward abandoned that body and went home, acknowledg- ing that he -never had been elected. ' ' We are of opinion that the testimony so proposed by Mr. Spofford is material, and ought, in justice to him and the Senate, to have been received. Besides, it cannot be truly said that the respective claims of the contestants have been decided upon their "substan- tial merits ' ' when one of them is not allowed to produce material testimony which he offers and is anxious to produce. And it may be that a decision made by the Senate now, without fair opportunity to produce such testimony, maybe reviewed and reversed at some future time. It is well to put an end to controversy now by allowing both the contestants the fullest and fairest opportunity to produce all material testimony. "VVe think, therefore, that the whole matter ought to be recommitted to the committee, to the end the proposed testimony may be taken. The following provisions of the constitution of Louisiana are material to a proper understanding of the points raised in the contest now under consideration: "Aet. 15. The legislative power of the State shall be vested in two distinct branches, the one to be styled the house of represenatives, th^ other the senate, and both the gen- eral assembly of the State of Louisiana. ' 'Aet. 16. The members of the house of representatives shall continue in oflice for two years from the day of the closing of the general elections. "AETri7. Representatives shall be chosen on the first Monday in November every two years, and the election shall be completed in one day. The general assembly shall meet annually on the first Monday in January, unless a different day be appointed by law, and their sessions shall be held at the seat of government. "Aet. 19. Elections for members of the general assembly shall be held at the several election precincts established by law. "Aet. 27. The members of the Senate shall be elected for the term of four years; and •when assembled the senate shall have power to choose its own officers except as herein- after provided. "Aet. 31. At the first session of the general assembly after this constitution goes into effect the senators shall be 'divided equally by lot into two classes; the seats of the sen- ators of the first class to be vacated at the expiration of the term of the first house of representatives; those of the second class at the expiration of the term of the second house of representatives, so that one-half shall be chosen every two years successively. When a district shall have elected two senators their respective terms of office shall be determined by lot between themselves. "Aet. 33. Not less than a majority of the members of each house of the general as- sembly shall form a quorum to transact business; but a smaller number may adjourn from day to day, and shall have full power to compel the attendance of absent members. "Aet. 34. Each house of the general assembly shall judge of the qualifications, elec- tion, and returns of its members; but a contested election shall he determined in such manner as may be prescribed by law. "Aet. 46. Ketnrns of all elections for members of the general assembly shall be made to the secretary of state. • . . „ . "Aet. 48. The supreme executive power of the State shall be vested in a chief magis- trate who shall he styled the governor of the State of Louisiana. He shall hold his office' during the term of four years, and, together with the lieutenant-governor, chosen for the same term, be elected as follows: The qualified electors for representatives shall vote for governor and lieutenant-governor at the time and place for voting for represent- atives- the returns of every election shall be sealed up and transmitted by the proper returning officer to the secretary of state, who shall deliver them to the-speaker of the iouse of representatives on the second day of the session of the general assembly then 522 SENATE liLECTION CA;>i:S. to be holden. The members of the general assembly shall meet in the house of repre- sentatives to exam:'ne and count the voles. The person hnving the greatest number of votes for governor shall be declared duly elected; but in case of a tie \'ote between two or more candidates one of them shall immediately be chosen governor by joint vcrte of the members of the general assembly. The person having the greatest number of votes polled for lieutenant-governor shall be lieutenant-governor; but in case of a tie vote between two or more candidates, one of them shall be immediately chosen lieutenant- governor by joint vote of the members of the general assembly. "Aet. 51. The governor shall enter on the discharge of his duties on the second Mon- day in January next ensuing his election, and shall continue in office until the Monday next succeeding the day that his successor shall be declared duly elected, and shall have taken the oath or affirmation required by the constitution. "AST. 73. The judicial power shall be vested in a supreme court, in district courts, in parish courts, and in justices of the peace. "Aet. 94. No judicial powers, except as committing-maglstrates in criminal cases, shall be conferred on any officers other than those mentioned in this title, excepts such as may be necessary in towns and cities; and the judicial powers of such officers shall not extend further than the cognizance of cases arising under the police' regulations of towns and cities in the State. In any case where such officers shall assume jurisdiction over other matters than those which may arise under police regulations, or under their jurisdiction, as committing-inagistrates, they shall be liable to an action of damages in favor of the party injured, or his heirs; and a verdict in favor of the party injured shall ipso facto operate a vacation of the office of said officer. "Aet. 103. The privilege of free sui&age shall be supported by laws regulating elec- tions and prohibiting under adequate penalties all undue influence thereon from power, bribery, tumult, or other improper practice. * "Aet. 107. In all elections by thepeople the vote shall be taken by ballot; and in all elections by the senate and house of representatives, jointly or separately, the vote shall be given viva voce. "Aet. 133. No judicial powers shall be exercised by clerks of courts." And the following sections from the statute of that State approved November 20, 1872, commonly called the election law: "Section 1. Be it enacted hy the senate and house of representatives of the State of Louisiana in general assembly convened, That all elections for State, parish, and judicial officers, members of the general assembly, and for members of Congiess, shall be held on the 1st Monday in November, and said election shall be styled the general election. They shall be held in the manner and form and subject to the regulations hereinafter prescribed, and in no other. "Sec. 2. Be it further enacted, &c., That five persons, to be elected by the senate from all political parties, shall be the returning officers for all elections in the State, a niajority of whom shall constitute a quorum and have power to make the returns of all elections. In case of any vacancy by death, resignation, or otherwise, by either of the board, then the vacancy shall be filled by the residue of the board of returning officers. The re- turning officers shall after each election, before enterhjg upon their duties, take and subscribe to the following oath before a judge of the supreme or any district court: " ' I, A. B. , do solemnly swear (or affirm) that I will faithfully and diligently pertbrni the duties of a returning officer as prescribed by law; that I will carefully and hon- estly canvass and compile the statements of the votes, and make a true and correct return of the election: So help me God.' ' ' Within ten days after the closing of the election said returning officers shall meet in New Orleans to canvass and compile the statement of votes made by the commissioners of election, and make returns of the election to the secretary of state. They shall con- tinue in session until such returns have been compiled. The presiding officer shall, at such meeting, open, in the presence of the said returning officers, the statements of the commissioners of election, and the said returning officers shall, from said statements, canvass and compile the returns of the election in duplicate; one copy of such returns they shall file in the office of the secretary of state, and of one copy they shall make public proclamation, by printing in the official journal and such other newspapers as they may deem proper, declaring the names of all persons and officers voted for, the number of votes for each person, and the names of the persons who have been duly and lawfully elected. The return of the election thus made and promulgated shall ha prima facie evidence in all courts of justice and before all civil officers, until set aside after contest according to law, of the right of any person named therein to hold and exercise the office to which he shall by such return be declared elected. The governor shall, within thirty days thereafter, issue commissions to all officers thus declared elected, who are required by law to be commissioned. "Sec. 3. Be it farther enacted, die.. That in such canvass and compilation the return- THE LOUISIANA CASES, 1873-80. " 523 ing officers shall observe the following order: They shall compile first the statements from all polls or voting places at which there shall have been a iair, free, and peace- able registration and election. Whenever from any poll or voting place there shall be recewedthestatementofany supervisor of registration or commissioner of election, in form as required by section 26 of this act, on affidavit of three or more ciLizens, of any not, tumult, acts of violence, intimidation, armed disturbance, bribery, or corrupt influences, which prevented or tended to prevent a fair, free, and peaceable vote of aU qualified electors entitled to vote at such poll or voting place, such returning officers shall not canvass, count, or compile the statement of votes from such poll or voting places until the statements from all other polls or voting places shall have been canvassed and compiled. The returning officers shall then proceed to investigate the statements of riot, tumult, acts of violence, intimidation, armed disturbance, bribery, or corrupt influences at any such poll or voting place; and if from the evidence of such statement they shall be convinced that such riot, tumult, acts of violence, intimidation, armed disturbance, bribery, or corrupt influences did not materially interfere with the purity and freedom of the election at such poll or voting place, or did not prevent a sufficient number of qualified voters thereat from registering or voting to materially change the result of the election, then, and not otherwise, said returning officers shall canvass and compile the vote of such poll or vqting place with those previously canvassed and com- pUed ; but if said returning officers shall not be fully satisfied thereof, it shall be their duty to examine further testimony in regard thereto, and to this end they shall have power to send for persons and papers. If, after such examination, the said returning officers shall be convinced that said riot, tumult, acts of violence, intimidation, armed disturbance, bribery, or corrupt influences did materially interfere with the purity and fi:eedom of the election at such poll or voting place, or did prevent a sufficient number of the qualified electors thereat from registering and voting to materially change the result of the election, then the said returning officers shall not canvass or compile the statement of the votes of such poll or voting place, but shall exclude it from their returns: Provided, That any peison interested in said election by reason of being a candidate for office shall be allowed a hearing before said returning officers upon making application within the time allowed for the forwarding of the returns of said election. "Sec. 8. Beit further enacted, &c., That the election at each poll or voting place shall be presided over by three commissioners of election, residentsof the parish for at least twelve months next preceding the day of electiion, who shall be selected from different political parties, and be of good standing in the party to which they belong, and who shall, before entering upon the discharge of their duties, take and subscribe the oath prescribed for State officers. Should only one of the commissioners appointed be pres- ent at the hour for opening the poll, he shall appoint another, and both together shall appoint a third ; and the commissioners so appointed shall take the oath and perform all the duties of commissioners of election in the same manner as if they had been ap- pointed as provided for regular appointment of commissioners by this act. Any one of the commissioners shall be authorized' to administer the oath to the other commission- ers. The commissioners of election for the several wards in the city of New Orleans shall be appointed by the mayor and administrators of the city of New Orleans. "Sec. 13. Be it further enacted, <^e., That it shall be the duty of the commissioners of election, at each poll or voting place, to keep a list of the names of the persons voting at such poll or voting place, which list shall be numbered from one to the end; and said list of voters, with their names and numbers as aforesaid, shall be signed and sworn to as correct by the commissioners, immediately on closing of the polls, and before leaving the place, and before opening the box. If no judge or justice of the peace, or other person authorized to administer such oath be present to do so, it may be administered ^y any voter. The votes shall be counted by the commissioners at each voting place, immedi- ately after closing the election and without moving the boxes from the place where the votes were received, and the counting must be done in the presence of any bystander or citizen who may be present. Tally-lists shall be kept of the count, and after the count the ballots counted shall be put back into the box and preserved until after the next term of the criminal or district court, as the case may be; and in the parishes, except Orleans, the commissioners of election, or anyone of them selected for that purpose, shall carry the box and deliver it to the clerk of the district court, who shall preserve the same as above required; and in the parish of Orleans the box shall be delivered to the clerk of the first district court for the parish of Orleans, and be kept by him as above directed. "Sec. 26. Be it further enacted, &c.. That in anyparish, precinct, ward, city, or town in which during the time of registration, or revision of registration, or on any day of election, there shall be any riot, tumult, acts of violence, intimidation, and disturbance, bribery, or corrupt influences, at any place within said parish, or at or near any poll or voting place, or place of registration or revision of registration, which riot, tumult, acts 524 SENATE ELECTION CASES. of violence, intimidation, and disturbance, bribery, or corrupt influences shall prevent, or tend to prevent, a fair, free, peaceable, and full vote of all the qualified electors of said parish, precinct, ward, city, or town, it shall be the duty of the commissioners of election, if such riot, tumult, acts of violence, intimidation, and disturbance, bribery, or corrupt influences occur on the day of election, or of the supervision of registration of tho parish, if they occur during the time of registration, or revision of registration, to make in duplicate and under oath a clear and full statement of all the facts relating thereto and of the effect produced by such riot, tumult, acts of violence, intimidation, and dis- turbances, bribery, or currupt influences in preventing a fair, ftee, peaceable, jind full registration or election, and of the number of qualified voters deterred by such riots, tumult, acts of violence, intimidation, and disturbance, bribery, or corrupt influences from registering or voting, which statement shall also be corroborated under oath by three respectable citizens, qualified electors of the p|arish. "When such statement is made by a commissioner of election or a supervisor of registration, he shall forward it in dupli- cate to the supervisor of registration of the parish, if in the city of New Orleans to the secretary of state, one copy of which, if made to the supervisor of registration, shall be forwarded by him to the returning officers provided, for in section 2 of this act, when he makes the returns of election in his parish. His copy of said statement shall be so annexed to his- returns of elections, by paste, wax, or some adhesive substance, that the same can be kept together, and the other copy the supervisor of registration shall deliver to the clerk of the court of his parish for the use of the district attorney. "Sec. 43. Be it further enacted, &c., That immediately upon the close of the polls on the day of election, the commissioners of the election at each poll or voting place shall proceed to count the votes, as provided in section 13 of this act, and after they shall have so counted the votes and made a list of the names of all the persons voted for, and the offices for which they were voted for, and the number of votes received by each, the num- ber of ballots contained in the box. and the number rejected, and the reasons therefor, duplicates of such lists shall be made out, signed and sworn to by the commissioners of election of each poll, and such duplicate lists shall be delivered, one to the supervisor of registration of the parish, and one to the clerk of the district court of the parish, and in the parish of Orleans to the secretary of state, by one or all such commissioners in per- son, within twenty-four hours after the closing of the polls. It shall be the duty of the supervisors of registration, within twenty-four hours after the receipt of all the returns for the different polling places, to consolidate such returns, to be certified as correct by the clerk of the district court, and forward the consolidated returns, with the originals received by him, to the returning officers provided for in section 2 of this act, the said report and returns to be inclosed in an envelope of strong paper or cloth, securely sealed, and forwarded by mail. He shall forward a copy of any statement as to violence or dis- turbance, bribery or corruption, or other offenses specified in section 26 of this act, if any there be, together with all memoreinda and tally-lists used in making the count, and statement of the votes; "Sec. 44. Be it further enacted^ &c., That it shall be the duty of the secretary of state to transmit to the clerk of the house of representatives and the secretary of the senate of the last general assembly a list of the names of such persons as, according to the returns, shall have been elected to either branch of the general assembly ; and it shall be the duty of the said clerk and secretary to place the names of the representatives and senators elect so furnished upon the roll of the house and of the senate, respectively ; and those representatives and senators whose names are so placed by the clerk and secretary, re- spectively, in accordance with the foregoing provisions, and none other, shall be compe- tent to organize the house of representatives or senate. Nothing in this act shall be construed to conflict with article 34 of the constitution of the State." The senate branch of the legislature of Louisiana is composed of thirty-six senators, nineteen being a quorum ; the house branch is composed of one hundred and twenty members, sixty-one being a quorum. The election for governor and members of the legis- lature, styled the "general election," is held biennially, on the first Monday in Novem- ber. It will be observed that section 2, set forth above, of the statute regulating the man- ner of holding elections, provides for five ' ' returning officers ' ' for all elections in the State, commonly called ' ' the returning board. ' ' In view of the constitutional provisions above cited, this statutory provision is ptrange and anomalous. It suggests and imports a dis- honest purpose; it savors of fraud; in the natural order of things, leaving out of view for the moment that it contravenes the constitution, it is unnecessary, illogical, arid absurd, audit is not surprising that the returning board has been one of the chief instrumentali- ties in the hands of desperate adventurers in producing the disorders and stormy conflicts that have disgraced and cursed the State and people of Louisiana ever since it came into existence. What necessary, reasonable, or honest purpose it can serve we cannot see, and its whole history shows that it has accomplished much aud lastiiijj evil. THE LOUISIANA CASES, 1873-80. 525 The statutory clause providing for "the returning board," so far as it affects elections for governor and members of the legislature, manifestly comes in direct conflict with the constitution of Louisiana in two respects: 1. The forty-sixth article provides that, " returns of all elections for members of the general assembly shall be made to the secretary of state;" and it is provided in article ^f^' "The qualified electors lor representatives shall vote for governor and lieutenant-governor at the time and place for voting for representatives; the returns of every election shall be sealed up and transmitted by the proper returning ofacer to the secretary of state, who shall deliver them to the speaker of the house of representatives on the second day of the session of the general assembly then to be holden. " The term ' ' returns ' ' so used in the constitution plainly means the returns as made up by the election ofacers in the several parishes. If the counting, tabulating, and certily- ing the votes by such officers is not making up the "returns," and if such ofiScers are n9t returning officers, then what is the statement of the votes, and what are such officers properly termed? What office do they perlbrm? This is made the more manifest bv the almost universal use of the term "returns ' ' in connection with elections in the State of Louisiana belbre the existence of the returning board, and in most if not all the States in the Union. The constitution of Louisiana contains many provisions in reference to elections, and if it had been intended to attach such unusual meaning to the term " re- turns," such purpose would have been indicated by apt words. As there is no such unusual meaning indicated, the term must be taken in its ordinary acceptation when used in connection with elections. The clause of the statute providing lor the returning board requires that the "returns" shall be sent by the proper returning officers to "the returning board," instead of to the secretary of state, as the constitution provides, and being so in conflict with the constitution it is null and void. 2. Article 73 of the constitution provides: "The judicial power shall be vested in a supreme court, in district courts, in parish courts, and in justiees of the peace; " and article 94 provides: " No judicial powers, except as committing magistrates in criminal cases, shall be conferred on any officers other than those mentioned in this title, except such as may be necessary in towns and cities, and the judicial powers of such officers shall not extend lurther than the cognizance of cases arising under the police regulations of towns and cities in the State." The title from which these extracts are taken is styled in the constitution " Judiciary department;" it provides lor courts and the distribution of judicial power, but return- ing officers, or any like officers, are not mentioned in it, except by general terms to exclude them, and no judicial power is conferred upon them by it. The act creating ' ' the returning board ' ' undertakes to confer upon it very high and important judicial powers. In section 3, above set forth, it undertakes to empower and confer jurisdicbiou upon " the returning board " to investigate touching riots, disturb- ances, &c., and to decide to what extent the same affected the election at any polling place, and how, to adjudicate that the vote of the poll or voting place shall be counted, . or cast out wholly and rejected; to examine further testimony, to send for persons and papers, and to allow persons interested in such elections to come before them and assert and defend their rights. 'And by necessary implication, it is intended to confer all judicial power essential to determine all such questions as may come under their juris- diction. But the constitution, as we have seen, expressly forbids that any judicial iiower shall be conferred upon such officers, and the statutory provision in question is therefore null and void. It may be said that if the returning board and its acts are nullities then the election must fail absolutely. This does not follow; but if it should, this is no excuse or justi- fication, and cannot put life into the .statute when there is a plain and palpable violation of the constitution. Bat such consequences cannot follow. The returning officers des- ignated by the constitution must send the returns to the secretary of state, and the leg- islature may be duly organized according to the ordinary rules of general parliamentary law. . These are well understood, and in some States they alone prevail, and in the House of Representatives they prevailed for a long while. , . But granting, for the argument, that the returning board had a constitutional exist- ence, it plainly exceeded its powers in two material respects: 1. The statute regulating the manner of holding elections provides (see section 2, above set out), in reference to the returning board, as follows: "The presiding officer shall at such meeting open, in the presence of the said returning officers, the statements of the commissioners of election, and the said returning officers shall, from said statements, canvass and compile the re- turns of the election in duplicate; one copy of such returns they shall file in the office of the secretary of state, and of one copy they shall make public proclamation, by print- ing in the official journal and such other newspaper as they may deem proper, declaring the names of all persons and officers voted for, the number of votes for each person, and the names of the persons who have been duly elected. The returns of the election thus 526 SENATE ELECTION CASES. made and promulgated shall be prima facie evidence in all courts ol' jus.tice and beibro all civil officers until set aside after contest according to law of the right of any person namwl therein io hold and exercise the office to which he shall by such return be de- clared elected. The governor shall, within thir;(.y days therealter, issue commissions to all officers thus declared elected who are required by law to be commissioned." Now, this provision' is very material; it is not merejy directory, it is mandatory and essential. "The statements of the commissioners of election" are made by the officers at the polls, who held the election and knew exactly what votes were polled and under what circumstances; and, besides, these statements are sworn by the commissioners. The fact is, that in ascertaining the result of the election the returning board did not, from the statements of the commissioners of election, "canvass and compile the returns of the election; " but, on the contrary, they canvassed and compiled the returns from the consolidated returns made up by the supervisors, as provided in section 43 of the statute set out above. This conduct on the part of the returning board was not only unlawful, but the testimony goes to show that it was done williuUy; tjiat in repeated instances the comm.issioners' returns did not correspond with the supervisors' consoli- dated returns; that the latter had been so made up falsely, and always in favor of the Kepublican candidates, to the extent of some 3,500 votes.. 2. Section 26, set out above, of the statute referred to, provides that in case of riot, and other oilenses specified, it shall be the duty of the commissioner or supervisor, as specified, to make under oath a clear and full statement of all the fijiPts connected with such unlawful acts, and the effect of the same upon the election, and such statement must be corroborated under oath by three respectable citizens, qualified electors of the parish; such statements must be sent to the returning board, attached by wax cr some adhesive, substance to the returns of election. Section 3, set out above, of said act, prescribes the duties of the returning board in cases where such affidavits shall accom- pany returns sent to them. It will be seen that in one contingency they must not disturb the return, but count it; in another contingency they must reject it, and refuse to count it. Now, in plain violation of this statute in the respect last mentioned, the returning board in repeated instances, and after they had examined the returns and saw how results could-be affected to suit their wishes and interests, received affidavits alleging such, ofienses in various parishes and voting places, which affidavits were not made by supervisors or commission- ers of election, but by other persons, and such affidavits did not accompany returns as required bylaw; and, pretending to act upon such affidavits, the returns were sup- pressed — not rejected, as allowed by law in the contingency named, but suppressed in such way as to give Eepublicau candidates majorities where they did not receive uiujoi'- ities in the parishes and at the voting jplaces named. Mr. Kellogg admits in his statement (see it) that in the twelfth, eighteenth, and twenty-second senatorial districts the Democratic candidates had the majority of the votes cast at the polls, and, as the commissioners' returns sent to the returning board showed, that in the election of ten members of the house of representatives .designated the re- turns of commissioners showed that Democratic candidates were elected, and the return- ing board so changed or suppressed the returns as to show that the Eepublicau candidates were elected. Without reference to the fraudulent purpose of the returning board in the respects just mentioned, it had rio power thus to interfere with returns and alter or suppress them. If, under the constitution, it can exist at all for 'any purpose, it must pursue strictly the powers conferred upon it; it has not general jurisdiction, and cannot exercise powers like a court having general jurisdiction. 1 1 exceeded its powers, tran- scended its jurisdiction in the respects just mentioned, and such acts, apart from iiaud, were null and void. It cannot be truly said that the returning board exceeded its jurisdiction and exercised important powers whifch the statute creating it did not purport to conl'er by inadvert- ence. On the contrary, the evidence shows conclusively that it assumed such powers in aid of the most flagrant frauds perpetrated by it. Indeed, its whole course of con- duct, in pretending to ascertain the result of the election, manifests most strikingly the real purpose had in view in creating this strange nndunnatural tribunal. It ascertained results of the election, and seeing them, with clelil)eration and advisedly, changed them at will; made new ones, and always in favor of the Republican candidates. The returns ■from the parishes showed that NichoUs, the Democratic candidate for governor, had a majority over Packard, the Republican candidate for the same office, of 8,010 votes. Ily the exercise of the unlawful powers already pointed out, this majority was changed to a majority in favor of Packard of 3,426 votes. The evidence shows, and it is admitted by Mr. Kellogg, that Perkins, Democrat, had a majority for senator in the twelfth senatorial district^ he beat Weber, Rfpublican, largely, but the returning board gave the latter a certiticate of election. Meredith, Democrat, had a majiority over Hamlet, Republican, for the senate, for the eighteenth THE LOUIBIAJNA CASES, 1873-80. 527 senatorial ^strict; the returniug board gave Hamlet the certificate. Sandiford, Dem- ocrat, beat Blunt, Republican, lor the senate, in the twenty-second senatorial district: the returning board gave Blunt the certificate. ' In Ouachita Parish, Breard and Taylor, Democrats, beat Barrington and Brewster, Republicans lor the house of representatives, as the parish returns show; but the re- turning board gave the Republicans certificates of election. In East Baton Rouge Par- f ' P^E ' "^illi^^s, and Young, Democrats, beat Bird, Holt, and Lane, Republicans, for the house of representatives; the returning board gave the certificates of election to the Republicans. In La Fayette Parish, Marshall T. Martin, Democrat, beat Femest Martm, Republican (these were brothers), for the house of representatives; the Repub- hqau received the certificate of election. In West Feliciana Parish, Mc&ee and Ryland, Democrats, beat Swazie and Early, Republicans, for the house of representatives. The Republicans, however, received cer- tificates of election. In Morehouse Parish, Washburn and Hammond, Democrats, beat Shelton and Blair, Republicans, for the house of representatives, but the certificates of election were given to the Republicans. In De Soto Parish, Pitts and Means, Demo- crats, beat Long and Johnson, Republicans; the latter received certificates of election. The returning board refused to count any returns from the parishes of Grant and East Feliciana; the returns were thrown out absolutely. The parish returns show that Lyons and Porter, Democrats, were elected from East Feliciana, and Randolph, Demo- crat, was elected from Grant IParish. The parish returns show that the Democrats were elected in each instance above men- tioned, and Mr. Kellogg admits that they received majorities. (See his statement made to the committee on 13th of November instant.) These changes were wrought by the returning board, not in the exercise of the powers sought to be conferred upon them by statute and in the way prescribed, but by the exercise of arbitrary power, for which there was no color of legal sanction. The statute creating the board required that it should be composed of five persons to be elected from all political parties. In fact there were but. four members composing it, and all of them Republicans. The statute commanded that the vacancy should be filled by those members in ofiice; they peremptorily refused to fill the vacancy. / In changing the results of the election as above stated, the sittings of the board were irregular; their movements were clandestine and collusive; they received illegal evi- dence to the end they might make pretext for suppressing poUs; they received sug- gestions irom persons not allowed by law to make them; and after they and their polit- ical associates saw that it was necessary to change results in their own interests, Mr. Spofford proposed to prove that Mr. Kellogg, then governor and a candidate for the United States Senatorship which he now claims, "joined in making illegal complaints and inducing the board to consider them." In view of the facts and circumstances developed by the testimony received by the committee we do not hesitate — we feel constrained to declare — that the returning board in Louisiana in pretending to ascertain and determine the result of the election in that State in November last not only proceeded in many material respects without the sanc- tion or even color of law, but perpetrated the most flagrant and shameless frauds, sur- passing, if possible, any ever perpetrated by that tribunal before, and by such means undertook to change the actual result of that election so as to elect the Republican can- didate for governor and give the Republicans a majority in the legislature. Their action wiw unlawful, willful, corrupt, concerted; and we cannot escape the conviction that it wiis, to say the least and best, connived at and encouraged bypersons occupying impor- tant stations in and out of the State of Louisiana. On the 1st day of January, A. D. 1877, as the constitution of Louisiana directs, the legislature designated as "the Nicholls legislature" assembled in Saint Patrick's Hall in the city of New Orleans. The following extracts from the journal of the senate, found on pages 1 and 2, show the circumstances under which it met; ''The members of this senate, duly elected, ■j)roceeded at 12 m. on the 1st of January, 1877 — ^heing the first Monday of said month — to the State capitol of the State of Louisi- ana, to which they were refused admittance, and which they found in the possession of a large body of metropolitan police and armed men. ' ' They were reliably informed of the presence of five companies of United States troops in an adjoining building, and that an entrance into the State capitol, by which the troops could be readily introduced into the senate chamber, had been especially made for that purpose. As the representatives of the people, this body considered it contrary to law and the spirit of free institutions to organize a general assembly of the State of Louisiana under a military guard calculated to overawe and intimidate the members. ' ' For which reasons they repaired to Saint Patrick's Hall, in the city of New Orleans, where a permanent organization has been effected." — (Senate journal, 1877, page 2.) Then follows on the next page, 3, signed by twenty senators, making a quorum: "The undersigned holding-over senators, and senators-elect, do hereby solemnly pro- 628 SENATE ELECTION CASES. teat against the occupation of the capitol of the State by an armed body of metropolitan police and other armed retainers, supported by a large body of Federal troops in an adjacent building immediately accessible to the State-house by a passage purposely pre- pared with that object in view, which illegal, arbitrary, and revolutionary proceedings have been consummated by the order and under the sanction of the governor of the State, and the lieutenant governor as presiding officer of the senate, for the purpose of overawing and .controlling the deliberations of the general assembly, and preventing the access of the members duly elected, as well as the citizens of the State, to the meet- ings of their servants, save upon the written permission of the governor," &c. There were in the senate at the organization on the day it assembled twenty senators. Of these, nine were "holding- over senators," and their right is not questioned; eight new senators held certificates from the returning board, and it is admitted that S. G. Perkins, senator from the twelfth district, received a maj oritur, he beating Weber, the Eepublican candidate. It is likewise admitted that T. E. Meredith received a majority of the votes cast in the eighteenth senatorial district over Hamlet, the Eepublican candi- date. And it is also admitted that J. W. Sandlford received a majority of the votes cast in the twenty-second senatorialdistrict over Blunt, the Kepublican candidate. The par- ish returns show these facts, and they are admitted. (See Mr. Kellogg's statement, made to the committee on the 13th of November, 1877.) It required nineteen senators to make a quorum; twenty senators were present at, and participated in, the organization. The following extracts from the journal of the house of representatives show the cir- cumstances attending the organization of that body (page 1) : "House of Eepeesentatives, ^^ New Orleans, January 1, 1877. " At"12 o'clock m. the clerk of the house of representatives, in accordance with the ' law, took his place on the stand of the speaker of the house and stated that he had found the State-house barricaded and in the possession of the police and military of the State, placed there by order of the governor, and a militia officer in charge of the hall of the house of representatives; that he had demanded that such officers should withdraw, and the obstructions to the free ingress and egress to the State-house and hall of the house of representatives be removed; that he had been refused such demand, and vfould not organ- ize the house of representatives under such circumstances, but would go elsewhere and organizg that body. He then repaired to Saint Patrick's Hall, where the house was called to order." Mr. Trezevant was the clerk who organized the house ; he was clerk of the "old house ' ' and the person authorized by law to organize the new one. There were present and participating in the organization of the house sixty-two mem- bers, sixty-one being a quorum ; of these held certificates from the returning board. Of those present, the parish returns shpw, and it is admitted (see Mr. Kellogg's statement above cited), that D. A. Breard, j r. , and J. G. Taylor, of Ouachita Parish, received ma- jorities over Barrington and Brewster, Eepublicans; that J.-Pitts and Joe T. Means, of De Soto Parish, received majorities over Long and Johnston, Eepublicans; that Eobert H. Eyland and J. B. McGehee, of West Feliciana, received majorities over Swazie and Early, Eepublicans; that W. W. Washburn and J. D. Hammond, of Morehouse Parish, received majorities over Shelton and Blair, Eepublicans; that James T. Williams, H. G. Young, and J. W. Dupr6, of East Baton Eouge Parish, received majorities over Bird, Holt, and Lane, Eepublicans; that Marshall T. Martin, of La Fayette Parish, received a majority over Fernest Martin, Eepublican; that W. W. Carlos, of Webster Parish, re- ceived a majority over Heath, Eepublican; that W. B. Porter and T. B. Lyons, of East Feliciana, received all the votes cast; had no opponent; this vote the returning board threw out; that E. G. Eandolph, of Grant Parish, received a majority of all the votes cast; the vote of this parish the returning board threw out. It thus appears that "the NichoUs legislature," on the first day it assembled, had a quorum, and more than a quorum, of members who had been elected at the polls, and in fact had the right to sit. But for the unlawful and fraudulent action of the returning board, there could be no pretense for suggestion that the organization thus made was not strictly legal in all respects. Indeed, the organization was made in pursuance of the actual result of the election. It is said, however, that whatever may have been the result of the election at the poll- ing places throughout the State in the parishes, the liigislature must be organized by those persons, and only those, who hold certificates of election from the returning board, and that v^ithout reference to the conduct of that board, whether dishonest, fraudulent, or otherwise. In reply to this view "we have endeavored to show, first, that the return- ing board had no constitutional sanction as returning officers of the election for governor and members of the legislature, and its acts are therefore void; second, that granting for THE LOUISIANA CASES, 1873-80. 529 argnment's sake that it had a legal existence, it transceaded its powers and jurisdiction, • 1 ' '? f}^^ canvass and compile ' ' the returns of the commissioners of election, psteaa ot the consolidated returns sent to it by the supervisors of election; and second, in that It received suggestions aftei^seeing the returns and knowing the result' as to vio- lence, disorders, &c., otherwise than as the law allowed. And the testimony makes the dishonest purpose and fraudulent conduct of the returning board in changing results ., '^^^^A it: ^o^^ever, another answer. The Senate, in Spencer's case, after much debate, decided that when there are two rival bodies of men in a State, each claiming to be the lawful legislature it is competent to look behind the certificate of election and see who was in tact elected at the polls. This is a recent decision, and it was sanctioned by the vote ot every Eepublican Senator who voted on the question. We do not stop here to question the soundness of this decision; it was made by a Eepublican Senate and in iavor of a Eepublican Senator. We cite the following extract from the report of the ^""^l^^^^ <*'! Privileges and Electioas in this case. The committee say: When we consider -that all the forms prescribed by law for canvassing and certifving an election, and for the organization of the two houses, are designed to secure to the persons actually elected the right to act in the offices to which in fact they have been elected, it would be sacrificing the end to the means were the Senate to adhere to the mere form, and thus defeat the end which the forms were intended to secure. The persons in the two bodies claiming to be the senate and house of representatives who votedf or Spencer constituted a quorom of both houses of the members actually elected ; the persons in the State-house legislature who voted for Sykes did not constitute a quo- rum of the two houses duly elected, but a quorom of persons certified to have been elected to the two houses. ' ' The legislature, so organized,;on the Sddayof Jaoauary, 1876, canvassed the returns for governor, and declared Francis T. NichoUs elected, and on the 8th day of the same month he took the oath of office prescribed by law, and has ever since that time exercised the office of governor. On the 24th day of April, 1877, the legislature elected the contestant, Mr. Spofford, to be a Senater in the United States Senate for six years from the 4th of March, 1877, hav- ing voted in joint assembly at least once each legislative day since the 10th of January, 1877. Each house took a vote on the 9th. The whole number of votes cast in that election was 153. Mr. Spofford received 140 votes. There were but three members of the legislature absent at the time. Of the members thus voting, 51 had been in "the Packard legislature" at the time Mr. Kellogg claims to have been elected, and voted for him. At the time Mr. Spofford was elected there was only ' ' the NichoUs legisla- ture " in the State, and there was no opposing or rival body. All the acts passed by this legislature are duly published and recognized as the stat- utes of Louisiana. They are recognized by all the co-ordinate branches of the State gov- ernment and by the whole people, and by the courts of the United States sitting in that State. The first act passed by this legislature was approved by Governor NichoUs on the 8th of January, 1877, the day he went into office. The body of men which claimed to be the legislature of Louisiana, and commonly called " the Packard legislature," assembled in the State-house, in New Orleans, on the 1st day of January, 1877. The house was barricaded and surrounded by bodies of met- ropolitan police, and several companies of United States troops were kept in readiness for action in the neighborhood of the State-house. There were in the senate branch of this legislature eight "holding-over " senators and eleven persons claiming to be senators holding certificates of election from the returning board. These persons were Messrs. Blunt, Bryant, Case, Demas, Hamlet, Hooper, Sutton, Stamps, Wakefield, Wheeler, and Weber — eleven in all. These altogether make nineteen, a quorum, if they had all been elected, but Blunt, Hamlet, and Weber were defeated candidates; this the parish re- turns show and the fact is admitted. So that, in fact, there were in this senate but sixteen senators entitled to sit in a lawful legislature. One of these (Hamlet) hav- ing departed, left them without even a nominal quorum. . Then Mr. Steven, a ' ' holding over" senator, sitting in "the NichoUs legislature," happened to be in the State- house on business, and the sergeant-at-arms of the Packard legislature seized and took him into the senate chamber to try and restore their nominal quorum. He was taken by force, and against his will and protest, and he did not participate in anything done. The seizure of Mr. Steven was a disgraceful proceeding, and the object had in view was to make a nominal quorum in order to admit as senators, upon a feigned contest, Baker and Kelso, two candidates who were defeated at.the polls, and who did not even hold certificates of election from the returning board. Steven did not vote, refused to par- ticipate, and without him there was no quorum present when Kelwo and Baker were admitted. ]\Ir. Steven gives the following account of his sei,suro. jlc says : " On Jaaun.ry 1, 1877, I was one of the holding-over senators who formed the senate S B C 34 530 SENATE ELECTION CASES. of the State of Louisiana convened on that day in Saint Patrick's Hall, in the city of Ne'n: Orleans. " I was one of the committee of three appointed by the chair to inform Governor Kel- logg that the senate was duly organized, and ready to receive any communication he might have to make, &c., &c. The other members of the committee were Mr. Garland, of Saint Landry, and Mr. Boatner, of Catahoula, both of whom were elected in 1876. The committee proceeded to the Saint Louis Hotel, were ■admitted to Grovemor Kel- logg's office, and delivered to him in person the message with which they were charged. Upon leaving Governor Kellogg's office, I was. stopped by two or three persons, who stated that they were sergeants-at-arms of the senate, and that I must accompany them to the senate chamber. I stated that the senate of the State had met in Saint Patrick's Hall on that day and had adjourned until the following day; therefore I refused to ac- company them, and refused to submit to arrest. " I was thereupon seized by two or more of these parties and pushed and dragged iu the direction of the senate chamber, I resisting at every step. In this manner we reached the outside bar of the senate, where, by getting my feet against the railing, I was enabled for a few moments to make a more effectual resistance. I was finally forced to the bar of the senate. I addressed myself to the president (Lieutenant-Gov- ernor Antoine), who was in the chair, stating the circumstances which led to my arrest, protesting against the arrest, and demanding that I be permitted to withdraw. The president stated that I could only be permitted to withdraw by unanimous consent of the senate, which was refused. At this juncture Governor Kellogg came in through a door immediately in the rear of the president's desk. I appealed to him as commander- in-chief of the forces occupying the building to release me, as I considered my arrest as equivalent to a violation of a flag of truce. " He stated he was very sorry, &c., but as the senate had fue in custody he could not interfere. I then made an attempt to go out, but was seized by several persons and forced back. I took a chair and sat down with my back to the president, at the end of the center aisle. The roll was called, my name repeated probably a dozen or more times; I made no response nor gave recognition in any way, shape, or manner whatever. When the roll was called on the seating of Baker and Kelso I made no answer, nor gave sign or motion of any kind whatever. "WILL STEVEN." There was not at any time a lawful senate. In the Packard house of representatives there were at no time more than sixty-eight persons present claiming to be members. Eleven of these, including Brown, of Vernon Parish, as has already appeared, were defeated at the polls, so the parish returns show, and Mr. Kellogg admits that their Democratic opponents had majorities of the votes cast. ' This leaves the house without a quorum of members actually elected. Mr. Kellogg, there- fore, did not receive a majority of the members elected to the legislature. The evidence shows that but for the presence of the United States troops the so-called "Packard legislature" would never have assembled, and never would have set up any claim to be a legislature; but for the presence of troops it would not have continued to exist for one hour; it never for one moment existed aa a free legislative body; it was the creature of fraud and force, and as soon as the latter disappeared it fled from the face of men; it felt and realized that it had no rightful existence, and hence its friends and foes alike repudiated it. From the beginning it was a sham, a pretense, and a fraud; it passed no act, it did nothing that is recognized as law by aiiy of the authorities in Lou- isiana; it did no act for which any authority claims validity, except the pretended elec- tion of the contestant, Mr. Kellogg. This is the only act it did that claims recognition, and it remains to be seen if the Senate of the United States alone will recognize and accept this single fraudulent act of a pretended legislature which the State and people of Louisiana utterly repudiate. Treachery and fraud mark every lineament of the so-called "Packard legislature" from its incipiency, and the Senate cannot escape seeing this. But apart from fraud, where there are two rival bodies of men in a State, each claiming in good faith to be the lawful legislature, and each contests the right of the other from the beginning of their existence, and such contest is continued without intermission until one prevails and ab- sorbs the other, so that the latter completely disappears, and £Q1 the co-ordinate branches, and all the authorities, and the great mass of the people of the State, and the President and courts of the United States, recognize the prevaiUng body as the lawful legislature, and all its acts passed from its beginning as laws of the State, and recognize no single act of the body so absorbed and totally disapiiearing, can the Senate of the United States, many months after it has so completely disappeared, recogni^a the body thas disappear- ing as the legislature of the State by admitting to the Senate as a Senator a person who claims to have been elected by such a body of men ? THE LOUISIANA CASES, 1873-80. 531 The statement of the proposition irresistibly suggests the answer— it cannot. The benate may have the physical power to do so— it has not the right to do so— it can only do so by the arbitrary exercise of lawless, despotic power. Such an act on the part of the ^•enato could only be regarded as a defiance o*" the authority, right, and will of the State and an insult to its dignity ; it would shock the moral sense of the American people, and afford cause tor profound distrust and alarm for the safety of our system of government, i he misrule and public disorders which have aflicted the State and people of Lou- isiana seem to have passed away. The settlement of differences and a new administration ot government resulting upon the election in November last restored peace, good order, and a wholesome government. + ' ° That State and that people have settled their political contests and strifes which have annoyed and distressed the whole country. The Senate ought not, we trust it will not, disturb that settlement and revive bitter controversies. On the contrary, we trust it Will, a^ in law and right it must do, accept and ratify that settlement by admitting the contestant, Mr. Spofford. His credentials, in all respects, comply with requirements of law, and he is well entitled to sit as Senator. ELI SAULSBURY. A. S. MEREIMON. BENJ. H. HILL. Wednesday, November 28, 1877. Mr. Wadleigh rose to a question of privilege and moved that the Senate proceed to the consideration of the resolution yesterday reported by the Committee on Privileges and Elections to admit William P. Kellogg to a seat in the Senate as a Senator from the State of Louisiana. ******* The Senate proceeded to the consideration of the said resolution. On motion by Mr. Thurmau to amend the resolution by striking out all after the word "resolved" and in lieu thereof inserting: "That M. C. Butler be now sworn as a Senator irom the State of South Carolina,',' After debate. On the question to agree thereto, the yeas were 30 and the nays were 30. On motion by Mr. Edmunds, the yeas and nays being desired by one-fifth of the Sen- ators present, Those who voted in the affirmative are Messrs. Bailey, Bayard, Beck, Cockrell, Coke, Davis of Illinois, Davis of West Virginia, Dennis, Eaton, Garland, Gordon, Harris, Hereford, Hill, Jones of Florida, Kernan, Laraar, McCreery, McDonald, McPherspn, Merrimon, Morgan, Patterson, Randolph; Saulsbury, Thurman, Voorhees, Wallace, Whyte, and Withers. Those who voted in the negative are Messrs. Allison, Anthony, Booth, Bruce, Burn- side, Cameron of Pennsylvania, Cameron ,of Wisconsin, Chaffee, Christiancy, Conkling, Conover, Dawes, Dorsey, Edmuhds, Hoar, Howe, Jones of Nevada, Kirkwood, McMillan, Matthews, Mitchell, Momll, Oglesby, Paddock, Rollins, Sargent, Saunders, Spencer, Teller, and Wadleigh. The vote of the Senate being equally divided. The Vice-President voted in the negative. So the amendment was not agreed to. Upon the announcement of the result of the vote on the amendment, Mr. Thurman rose to a question of order, and submitted that the provision" of the Constitution that the Vice-President shall have no vote unless where the Senate is equally divided does not apply to the case of seating a member; but that questions of seating a member should be left to the Senators themselves, under the provision that each House shall be the judge of the elections, qualifications, and returns of its own members; and. After debate, Mr. Thurman withdrew the question of order. The question recurring on agreeing to the resolution, Pending debate, a message was received from the House of Representatives. ******* The Senate resumed the consideration of the resolution to admit William Pitt Kel- logg to a seat in the Senate; and, On motion by Mr. Patterson (at 6 o'clock and 10 minutes p. m.) that the Senate ad- journ, it was determined in the affirmative — yeas 29, nays 27. ******* [The debate is found on pages 730-749 of the Congressional Record, vol. vi.] 532 SENATE ELECTION CASES. Thuesday, November 29, 1877. The Senate resumed the consideration of the resolution reported by the Committee on Privileges and Elections to admit William Pitt Kellogg to a seat in the Senate as a Sen- ator from the State of Louisiana; and, ♦ Pending debate. On motion by Mr. Conover (at 4 o'clock and 5 minutes p. m.), the Senate proceeded to the consideration of executive business. [The debate is found on pages 749-764 of the Congressional Eecord, vol. vi. ] . Feiday, November 30, 1877. The Senate resumed the consideration of the resolution reported by the Committee on Privileges and Elections to admit William Pitt Kellogg to a seat in the Senate as a Senator from the State of Louisiana; and, The question being on the amendment proposed by Mr. Saulsbury to amend the res- olution so as to read as foUovrs, viz: "Whereas it appears by the report of the minority of the Committee on Privileges and Elections that Henry M. Spofford, one of the contestants to a seat in the Senate from the State of Louisiana, did ask and demand the authority of the committee to produce testimony on the five following points at issue between the contestants, to wit: "1. That the :^ts relative to the election of Tremoulet, Cressy, and Rolle, from the seventh representative district of New Orleans, were substantially as set forth in the statement read by H. M. Spofford in his argument before this committee on the 24th October, 1877. ' ' 2. That the composition, votes for Senator, and political proclivities of the legislature on the 24th April, 1877, when H. M. Spofiford was elected Senator, were substantially as set forth in the aforesaid argument. ' ' 3. That by the actual returns or statements as made in duplicate by the supervisors o£ registration (and assistant supervisors), with their appointees, the commissioners of election, and sent one set to the clerk of the district court of each parish in the county and to the secretary of state in the city, and the other set to the returning board (so called), showed a majority of votes actually cast throughout the State of about 8,000 votes for Nicholls and Wiltz over Packard and Antoine for the offices of governor and lieutenant-governor in the election that took place in Louisiana November 7, 1876. "4. Besides these specific violations of the constitution and of the law under which they pretended to act, I charge that the conduct of the returning officers in suppressing polls and changing the result of the constitutional returns was clandestine, collusive, tyrannical, and unjust; that the real work of conducting an election under pretext of compiling votes was proceeded with in a secret chamber by a corps of partisan clerks, while the occasional open sessions of the board were side-shows devised to screen what was going on within; that arbitrary rules of evidence were established _ for pretended contests and changed so often and abruptly-that no fair trial could be had or was had before the board; that illegal complaints were constantly received and illegal evidence admitted for the purpose of setting aside polls that were in the way of such candidates as the board desired to elect; and that Mr. Kellogg himself, then governor, joined in making illegal complaints and inducing the board to consider them. "5. I am informed, and so charged, that the returns from Vernon Parish, after they came into possession of the returning officers, and while they were under their controi, were fraudulently altered by a change of figures, tantamount to a forgery of a public record ; that the board knew what the figures upon those returns were before their alter- ation, and yet after the alteration promulgated the results of said forgery as the true, returns; that by such fraudulent alteration E. E. Smart, candidate for representative in the State assembly, who had in fact and according to the returns as they first came to the board defeated his competitor, Brown, was left behind and Brown, the defeated can- didate, falsely declared elected; and that said Brown took his seat in the Packard house and figures on the journal as present on the 2d of January, 1877, when there was a pre- tended count of votes for governor and lieutenant-governor in joint assembly, and per- haps on one or two other occasions, but that he afterward abandoned that body and went home, acknowledging that he never had been elected. "And which request was refused by a majority of said committee: Therefore, " Besolved, That the credentials of William Pitt Kellogg and of Henry M. Spoflbrd, the contestants for the seat in the Senate from the State of Louisiana, be recommitted to the Committee on Privileges and Elections, with all the papers relating to said con- test, with instructions to said committee to take testimony on the issues above men- tioned." The question being first put by the Chair on agreeing to the amendment of Mr. Sauls- THE LOUISIANA CASES, 1873-80. 533 bury to the resolution reported by the committee, viz: Strike out all after the word "re- solved" and in lieu thereof insert: "That the credentials of William Pitt Kellogg and of Henry M. Spofford, the con- testants lor the seat in the Senate from the State of Louisiana, be recommitted to the Committee on Privileges and Elections, with all the papers relating to said contest, with instructions to said committee to take testimony on the issues above mentioned," It wa.s determined in the negative— yeas 29, nays 29. On motion by Mr. Bayard, the yeas and nays being desired by one-fifth of the Sen- ators present. Those who voted in the affirmative are Messrs. Bailey, Bayard, Beck, Cockrell, Coke, f S^i® -^ ^^ Virginia, Dennis, Eaton, Garland, Gordon, Harris, Hereford, Hill, Jones ot Honda, Kernan, Lamar, McCreery, McDonald, McPherson, Merrimon, Morgan, Pat- teeon, Randolph, Saulsbury, Thurman, Voorhees, Wallace, Whyte, and Withers. Those who voted in the negative are Messrs. Allison, Anthony, Booth, Bruce, Burn- side, Cameron of Pennsylvania, Cameron of Wisconsin, Chaffee, Christiancy, Conkling, Conover, Dawes, Dorsey, Edmunds, Hoar, Howe, Jones of Nevada, Kirkwood, McMil- lan, Matthews, Mitchell, MorriU, Paddock, Rollins, Sargent, Saunders, Spencer, Teller, and Wadleigh. So the amendment was not agreed to. The question recurring on agreeing to the resolution. On motion by Mr. Thurman that the Senate proceed to the consideration of executive business, it was determined in the negative— yeas 21, nay 31. ******* The Senate resumed the consideration of the resolution reported by the Committee on Privileges and Elections to admit William. Pitt Kellogg to a seat in the Senate as a Sen- ator from the State of Louisiana; and. After debate. On motion, by Mr. Hill to amend the resolution by striking out all after the word "resolved" and in lieu thereof inserting: "That Henry M. Spofford be admitted as & Senator from the State of Louisiana on a prima facie title, and subject to the right of William Pitt Kellogg to contest his seat," It was determined in the negative — yeas 27, nays 29. On motion by Mr. Allison, the yeas and nays being desired by one-fifth of the Sena- tors present. Those who voted in the affirmative are Messrs. Bailey, Beck, Bayard, Cockrell, Coke, Davis of Illinois, Davis of West Virginia, Dennis, Eaton, Garland, Gordon, Harris, Here- ford, Hill, Jones of Florida, Kernan, McCreery, McDonald, McPherson, Merrimon, Mor- gan, Randolph, Saulsbury, Thurman, Voorhees, Wallace, and Withers. Those who voted in the negative are Messi's. Allison, Anthony, Booth, Bruce, Burn- side, Cameron of Pennsylvania, Cameron of Wisconsin, Chaffee, Christiancy, Conkling, Conover, Dawes, Dorsey, Edmunds, Hoar, Howe, Kirkwood, McMillan, Matthews, Mitchell, Morrill, Oglesby, Paddock, Patterson, Rollins, Saunders, Spencer, Teller, and Wadleigh. So the amendment was not agreed to. The question recurring on agreeing to the resolution in the following words: '^Resolved, That William Pitt Kellogg is, upon the merits of the case, lawfully en- titled 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 day of March, 1877, and that he be admitted thereto upon taking the proper oath; " liesolvecl, That Henry M. Spofford is not entitled to a seat in the Senate of the United States," It was determined in the affirmative — yeas 30, nays 28. The yeas and nays having been heretofore ordered. Those who voted in the affirmative are Messrs. Allison, Anthony, Booth, Bruce, Burn- side, Cameron of Pennsylvania, Cameron of Wisconsin, Chaffee, Christiancy, Conkling, Conover, Dawes, Dorsey, Edmunds, Hoar, Howe, Jones of Nevada, Kirkwood, McMillan, Matthews, Mitchell, Morrill, Oglesby, Paddock, Patterson, Rollins, Saunders, Spencer, Teller, and Wadleigh. Those who voted in the negative are Messrs. Bailey, Bayard, Beck, Cockrell, Coke, Davis of Illinois, Davis of West Virginia, Dennis, Eaton, Garland, Gordon, Harris, Here- ford, Hill, Jones of Florida, Kernan, Lamar, McCreery, McDonald, McPherson, Merri- mon, Morgan, Randolph, Saulsbury, Thurman, Voorhees, Wallace, and Withers. So the resolution was agreed to. * ****** Mr. William Pitt Kellogg then appeared, and the oath prescribed by law having been administered to him by the Vice-President, he took his seat in the Senate. [The debate is found pu pages 767-797 of the Congressional Record, vol. vi.] 534 SENATE ELECTION CASES. [First session of the Forty-sixth Congress. J Feiday, March 21, 1879. Mr. Jonas presented a memorial of Henry M: Spofford, of Louisiana, praying an inves- tigation into his claim to a seat in the Senate as Senator from that State; which was referred to the Committee on Privileges and Elections. "Wednesday, Apra 16, 1879. Mr. Hill, of Georgia, from the Committee on Privileges and Elections, reported the following resolution: "Resolved, That the Committee on Privileges and Elections Ije authorized to have printed for its use the arguments before it in the case of Spofford against Kellogg rela- tive to a seat in the Senate from the State of Louisiana, with such evidence, papers, and documents relative to the case as it may deem proper. ' ' The Senate proceeded, by unanimous consent, to consider the sai4 resolution; and having been amended on the motion of Mr. Hoar, the resolution, as amended, was agreed to, as follows: '^Resolved, That the Committee on Privileges and Elections be authorized to have priuted for its use the arguments before it in the case of Spofford against Kellogg rela- tive to a seat in the Senate from the State of Louisiana, with such other proceedings in relation to the case as it may deem proper. " [The debate is found on pages 468, 469 of the Congressional Record, vol. ix, part 1.] Thursday, May 1, 1870. Mr. Saulsbury, from the Committee on Privileges and Elections, reported the follow- ing resolution;, which was ordered to be printed: '^Resolved, That the Committee on Privileges and Elections, to which was referred the memorial of Henry M. Spofford, praying permission to produce evidence relating to the right of Hon. William Pitt Kellogg to the seat in the Senate held by him from the State of Louisiana, and in support of the claim of said petitioner thereto, be, and said commit- tee is herebyr instructed to inquire into the matters alleged in said petition, andfor that purpose said committee is authorized and empowered to send for persons and papers, administer oaths, and do all such other acts as are necessary and proper for a fall and fair investigation in the premises. Said committee may, in its discretion, appointa subcom- mittee of its own members to make such investigation in whole or in part; which sub- committee shall have authority to employ a clerk, stenographer, and sergeant-at-arms, and shall have all the powers of the general committee to administer oaths and send for persons and papers, and may make such investigation either in Washington or in the State- of Louisiana; and said committee or its subcommittee may sit in vacation." Friday, May 2, 1879. The Senate proceeded to consider the resolution yesterday reported by Mr. Saulsbury, from the Committee on Privileges and Elections, instructing said committee to inquire into the matters alleged in the petition of Henry M. Spofford, relating to the right of Hon. William Pitt Kellogg to a seat in the Senate; and On motion by Mr. Hoar to amend the resolution by striking out all of said resolution and inserting in lieu thereof the. following: "Whereas on the 25th day of October, 1877, the Senate unanimously adopted the fol- lowing 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 such committee, be'authorized to send for persons and papers, and administer oaths, with a view of enabling said com- mittee to determine and report upon the title, respectively, on the merits of each of said contestants to a seat in the Senate; ' "And whereas on the 26th day of November, 1877, said committee reported the fol- lowing resolutions: ' ' 'Resolved, That William Pitt Kellogg 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 day of March, 1877, and that he be admitted thereto upon taking the proper oath; ' ' 'Resolved, That Henry M. Spofford is not entitled to a seat ia the Senate of the United States; ' ' "And on the 30th day of November, 1877, the Senate adopted said resolution, and THE LOUISIANA CASES,. 1873-80. 535 thereafter oa the same day said Kellogg was duly admitted to take the oath and took his seat as a Senator from said State for said term: '■ Resolved, That said proceedings are final and conclusive upon the right of said Kel- logg and the claim of said Spofford to said seat for said term " Pending j^ehate, The President pro tempore announced that the morning hour had expired, and called up the unfinished husiness of the Senate at its adjournment yesterday. [The debate IS found On pages 102Ji-1024 of the Congressional Record, vol. Jx, part 1.] Tuesday, May 6, 1879. The Senate resumed the consideration of the resolution reported by Mr. Saulsbury from the Committee on Privileges and Elections, May 1, 1879, instructing said committee to inquire into the matters alleged in the petition of Henry M. Spofford, relating to the right of Hon. William Pitt KeUogg to a seat in the Senate; and, > ^-Bi&-'Wstion being on the amendment proposed by Mr. Hoar, ' ^'FOTdil% debate, The Presiding Officer announced that the morning hour had expired. [The debate is found on pages 1071-1087 of the Congressional Record, vol. ix, part 1.] Wednesday, May 7, 1879. The Senate resumed the consideration of the resolution reported by Mr. Saulsbury from the Committee on Privileges and Elections, May 1, 1879, instructing said committee to inquire into the matters alleged in the petition of Henry M. SpoflEbrd, relating to tha right of Hon. William Pitt Kellogg to a seat in the Senate; and, The question being on the amendment proposed by Mr. Hoar, After debate. On motion by Mr. Edmunds to amend the resolution by inserting after the word "petition," in line 6, the following: "So far only as relates to any charge" in said peti- tion of personal misconduct on the part of said Kellogg which may render him liable to expulsion or censure," it was determined in the negative — yeas 20, nays 27. On motion by Mr. Saulsbury, the yeas and nays being desired by one-fifth of the Sen- ators present. Those who voted in the affirmative are Messrs. Allison, Bell, Booth, Bruce, Burnside, Cameron of Wisconsin, Conkling, Edmunds, Ferry, Hill of Colorado, Hoar, Ingalls, Logan, McMillan, Morrill, Piatt, Rollins, Saunders, Teller, and Windom. Those who voted in the negative are Messrs. Bailey, Beck, Call, Coke, Davis of West Virginia, Garland, Hampton, Harris, Hill of Georgia, Houston, Jonas, Jones of Florida, Kernan, Lamar, McDonald, Maxey, Morgan, Pendleton, Randolph, Ransom, Saulsbury, Slater, Vance, Vest, Voorhees, Walker, and Withers. So the amendment was not agreed to. On motion by Mr. Conkling to amend the resolution by adding at the end thereof the following: ' 'Provided, That the inquiry hereby authorized shall be confined to the matters alleged in the memorial of Mr. Spofford to be new and dififerent from those covered by the pre- vious inquiry," It was determined in the negative — ^yeas 20, nays 27. On motion by Mr. Saulsbury, the yeas and nays being desired by one-fifth of the Sen- ators present, Those who voted in the affirmative are Messrs. Allison, Bell, Booth, Bruce, Burnside, Cameron of Wisconsin, Conkling, Edmunds, Ferry, Hill of Colorado, Hoar, Ingalls, , Logan, McMillan, Morrill, Piatt, Rollins, Saunders, Teller, and Windom. Those who voted in the negative 'are Messrs. Bailey, Beck, Call, Coke, Davis-of West Virginia, Garland, Hampton, Harris, Hill of Georgia, Houston, Jonas, Jones of Florida, Kernan, Lamar, McDonald, Maxey, Morgan, Pendleton, Randolph, Ransom, Saulsbury, Slater, Vance, Vest, Voorhees, Walker, and Withers. So the amendment was not agreed to. The resolution having been amended on the motion of Mr. Hoar, On motion by Mr. Edmunds to further amend the resolution by inserting after the word "that," in line 1, the following: "recognizing the validity and finality of the previous action of the Senate in the premises, '2 it was determined in the negative — yeas 20, nays 27. On motion by Mr. Edmunds, the yeas and nays being desired by one-fifth of the Sen- ators present. Those who voted in the affirmative are Messrs. Allison, Bell, Booth, Bruce, Burnside, 536 SENATE ELECTION CASES. Cameron of Wisconsin, Conkling, Edmunds, Ferry, Hill of Colorado, Hoar, Ingalls, Logan, McMUlan, Morrill, Piatt, BoUins, Saunders, Teller, and Windom. Those who voted in the negative are Messrs. Bailey, Beck, Call, Coke, Davis of West Virginia, Garland, Hampton, Harris, Hill of Georgia, Houston, Jonas, Jones of Florida, Kernan, Lamar, McDonald, Maxey, Morgan, Pendleton, Kandolph, Eansom, Saulsbury, Slater, Vance, Vest, Voorhees, Walker, and Withers. So the amendment was not agreed to. On motion by Mr. Conkling to further amend the resolution by adding at the end thereof the following: "Provided, That such questions in said case as were fully considered and adjudged in the former investigation shall not be opened under this resolution," It was determined in the negative— ^yeas 20, nays 27. On motion by Mr. Conkling, the yeas and nays being desired by one-fifth of the Sen- ators present. Those who voted in the affirmative are Messrs. Allison, Bell, Booth, Bruce, Burnside, Cameron of Wisconsin, Conkling, Edmunds, Ferry, Hill of Colorado, Hoar, Ingalls, Logan, McMillan, Morrill, Piatt, Rollins, Saunders, Teller, and Windom. Those who voted in the negative are Messrs. Bailey, Beck, Call, Cockrell, Coke, Davis of West Virginia, Garland, Hampton, Harris, Hill of Georgia, Houston, Jonas, Jones of Florida, Kernan, Lamar, McDonald, Maxey, Morgan, Pendleton, Kandolph, Eansom, Saulsbury, Slater, Vance, Vest, Voorhees, Walker, and'Withers. So the amendment was not agreed to. On motion by Mr. Logan to further amend the resolution by adding at the end thereof the following: ' 'Provided, That said committee be farther empowered and directed to make inquiry and take testimony upon the matter as to whether any unlawful or corrupt means were employed to disorganize the body by which William Pitt Kellogg claims to have been elected to the Senate, or to organize that by which the memorialist claims to have been elected or to secure the alleged election of the memorialist," During the debate, Mr. Morgan, while addressing the Senate on the proposed amendment, having used the following language: "Has the Senator from Louisiana (Mr. Kellogg) any objection to the Committee on Privileges and Elections investigating the question whether or not he bribed the mem- bers of the legislature that elected him?" Mr. Edmunds raised a question of order, that it was not in order, wlere another Sen- ator is personally concerned and a resolution is offered affecting his character, to propound such a question. The President pro tempore decided that, in the opinion of the Chair, the language used by the Senator from Alabama contained no imputation upon the Senator from Louisiana, and was in order. After further debate, On the question to agree to the amendment proposed by Mr. Logan, it was determined in the negative — yeas 19, nays 28. On motion by Mr. Logan, the yeas and nays being desired by one-fifth of the Senators present. Those who voted in the affirmative are Messrs. Allison, Bell, Booth, Bruce, Burnside, Cameron of Wisconsin, Dawes, Edmunds, Ferry, Hill of Colorado', Hoar, Ingalls, Logan, McMillan, Morrill, Piatt, Rollins, Saunders, and Windom-. Those who voted in the negative are Messrs. Bailey, Beck, Call, Coke, Davis of West Virginia, Garland, Groome, Hampton, Harris, Hill of Georgia, Houston, Jonas, Jones of Florida, Kernan, Lamar, Maxey, Morgan, Pendleton, Randolph, Ransom, Saulsbury, Slater, Vance, Vest, Voorhees, Walker, Williams, and Withers. So the amendment was not agreed to. The question recurring on agreeing to the amendment proposed by Mr. Hoar, viz: Strike out all of said resolution, and in lieu thereof insert the following: "Whereas on the 25th day of October, 1877, the Senate unanimously adopted 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 such comniittee, be authorized to send for persons and papers, and administer oaths, with a view of enabling said com- mittee to determine aqd report upon the title, respectively, on the merits, of each of said contestants to a seat in the Senate; ' "And whereas on the 26th day of November, 1877, said committee reported the fol- lowing resolutions: " 'Bcsolved, That William Pitt Kellogg is, upon the merits of the case, entitled to a THE LOUISIANA CASES, 1873-80. 537 seat in the Senate of the United States from the State of Louisiana for the leim of six years commencing on the 4th of March, 1877, and that he be admitted thereto upon taking the proper oath ; Ti"-l^m^f' 'P^* Henry M. Spofford is not entitled to a seat in the Senate of the United States;' *J''^^ °^ the 30th day of November, 1877, the Senate adopted said resolutions; and therealter, on the same day, said Kellogg was duly admitted to take the oath, and took his seat as a Senator from said State for said term: Therefore, Uesolved, That said proceedings are final and conclusive upon the right of said Kel- logg and the claim of said Spoflford to such" seat for said term ' ' It was determined in the negative— yeas 17, nays 26. On motion by Mr. Hoar, the yeas and nays being desired by one-fifth of the Senators pr6S6Il'tf Those who voted in the afarmativeare Messrs. Allison, Bell, Bruce, Cameron of Wiscon- ®?i' ™''7.^^i>^,v™'"'„^^' ^5"^' ^''^^ "'^ Colorado, Hoar, Ingalls, Logan, McMUlan, Mor- rill, Piatt, Rollins, Saunders, and Wlndoni. Those who voted in the negative are Messrs. Bailey, Call, Coke, Davis of West Vir- ginia, Garland, Groome, Hampton, Harris, Hill of Georgia, Houston, Jonas, Jones of Honda, Kernan, Lamar, Maxey, Morgan, Pendleton, Randolph, Ransom, Saulsburv, Slater, Vance, Vest, Voorhees, Walker, and Williams. So the amendment was not agreed to. On the question to agree to the resolution as amended, it was determined in theafiBrm- ative — yeas 26, nays 17. On motion by Mr. Edmunds, the yeas and nays being desired by one-fifth of the Sen- ators present. Those who voted in the affirmative are Messrs. Bailey, Call, Coke, Davis of West Vir- ginia, Garland, Groome, Hampton, Harris, Hill of Georgia, Houston, Jonas, Jones of Florida, Kernan, Lamax, Maxey, Morgan, Pendleton, Randolph, Ransom, Saulsbury, Slater, Vance, Vest, Voorheqs, Walker, and Williams. Those who voted in the negative are Messrs. Allison, Bell, Bruce, Cameron of Wiscon- sin, Dawes, Edmunds, Ferry, Hill of Colorado, Hoar, Ingalls, Logan, McMillan, Mor- rill, Piatt, Rollins, Saunders, and Windom. So the resolution as amended was agreed to, and is as follows: "Resolved, That the Committee on Privileges and Elections, to which was referred, the memorial of Henry M. Spofibrd, praying permission to produce evidence relating to the right of Hon. WUliam Pitt Kellogg to the seat in the Senate held by him from the State of Louisiana, and in support of the claim of said petitioner thereto, be, and said commit- tee is hereby, instructed to inquire into the matters alleged in said petition; and for that purpose said committee is authorized and empowered to send for persons and papers, ad- minister oaths, and do all such other acts as are necessary and proper for a full and fair investigation in the premises. Said committee may, in its discretion, appoint a sub- committee of its own members to make such investigation in whole or in part; which subcommittee shall have authority to employ a clerk, stenographer, and sergeant-at- arms, and shall have all the powers of the general committee to administer oaths and send for persons and papers, and may make such investigation either in Washington or in the State of Louisiana, and said committee or its subcommittee may sit in vacation; and said committee are further instructed to inquire and- report whether bribery or other corrupt or unlawful means were resorted to to secure the alleged election of the memo- rialist." [The debate is found on pages 1099-1123 of the Congressional Record, vol. ix, part l.J Satueday, Jime 21, 1879. Mr. Hill, of Georgia, from the Committee on Privileges and Elections, reported the following resolution; which jvas considered by unanimous consent, and agreed to: "Besolved, That the Committee on Privileges and Elections, or a subcommittee of the same, be, and are hereby, authorized to sit during the recess of the Senate for the pur- pose of continuing the investigation in the Spofibrd-KeUogg contest." [Second session of the Forty-sixth Congress.] Monday, February 9, 1880. The Vice-President laid before the Senate a resolution* of the legislature of Louisiana relative to the election of William Pitt Kellogg to the Senate of the United States from that State; which was referred to the Committee on Privileges and Elections, and ordered to be printed. * Found in Senate Miaoellaueous, ^iatli Cong., 2d Bess., vol. 1, No. 37. 538 SENATE ELECTION CASES. Thursday, February 13, 1880. The Vice-President laid before the Senate the memorial of Eepublican members of the legislature of Louisiana, relative to the election of William Piit Kellogg to the Sen- ate of the United States from that State; which was referred to the Committee on Priv- ileges and Elections, and ordered to be printed. [A copy of the memorial is found on pages 833-835 of the Congressional Eecord, vol. X, part 1.] ' Tuesday, February 17, 1880. Mr. Jonas presented a memorial of the Union Soldiers' Association of New Orleans, La., relative to the election of William Pitt Kellogg to the Senate of the United States, praying that his right to a seat therein be declared null and void; which was referred to the Committee on Privileges and Elections. Monday, March 22, 1880. Mr. Hill, of Georgia, from the Committee on Privileges and Elections, to whom was referred the memorial of Henry M. Spofiford, claiming to be entitled to a seat in. the Sen- ate as a Senator from the State of Louisiana, submitted a report (No. 338) thereon, ac- ebmp^ied by the following resolutions for consideration; which were ordered to be printed: "1. Sesolved, That, according to the evidence now known to the Senate, William P. Kellogg was not chosen by the legislature of Louisiana to the seat in the Senate for the telm beginning on the 4th day of March, 1877, and is not entitled to sit in the same. "2. Resolved, That Henry M. Spofford was chosen by the legislature of Louisiana to * the seat in the Senate for the term beginning on the 4th of March, 1877, and that he be admitted to the same on taking the oath prescribed by law." Mr. Hoar asked and obtained leave to submit the views of a minority of the Committee on Privileges and Elections on the foregoing subject; which were ordered to be printed, to accompany the report No. 388. On motion by Mr. Hill, of Georgia, that the testimony taken by the Committee on Privileges and Elections in the investigation of the claim of Henry M. Spofford to a seat in the Senate be printed. After debate, it was determined in the affirmative; [The debate is found on pages 1758-1768 of the'Congressional Eecord, vol. x, part 2.] EEPOET OF COMMITTEE.* [The committee consisted of Messrs. Saulsbury (chairman), Hill of Georgia, K ernan Bailey, Pryor, Vance, Cameron of Wisconsin, Hoar, and Logan.] In the Senate of the United States. Maech 22, 1880. — Ordered to be printed. Mr. Hill, of Georgia, from the Committee on Privileges and Elections, submitted the following report : i The Committee on Privileges and Elections, to whom was referred the memorial of Henry M. Spofford, claiming to ie entitled to the seat in the Senate from the State of Louisiana now occupied by William P. Kellogg, ask leave to submit the following re- port : On the 7th.day of November, 1876, an election was held in the State of Louisiana for a governor and members of the legislature. In March, 1877, William P. Kellogg pre- sented credentials signed by Stephen B; Packard, claiming to be governor, and certi- fying that said Kellogg had been duly elected to the seat in the Senate for the term beginning on the 4th of March, 1877, by the legislature chosen at said election. In Oc- tober, 1877, Henry M. Spofford presented credentials, sign'ed by Francis T. Nicholls, claiming to be governor, and certifying that said Spofford had been duly elected to the same seat by the legislature chosen at said eleiition. These several credentials were re- ferred by the Senate to the Committee on Privileges and Elections. On the 26th of No- vember, 1877, a majority of the committee reported that the committee had investigated the issue, and that Kellogg, on the merit.s, was entitled to the seat. A minority of the committee reported that the committee had not fully investigated the issue, but had re- fused to do so, and asked that the credentials of both contestants be recommitted, with instructions to complete the investigation. The Seu<-.rj refused to recommit, adopted the majority report, and Kellogg wa"? admitted to the scat on the 28tli of November, 1877. ♦Taken from Senate Reports 46th Cong'.,Cd scftn,, vol. t.Ko. -SSS, Tlie ncconaijanying testimony is here omitted. THE LOUISIANA CASES, 1873-80. 539 On the 21st day of March, 1879, Henry M. Spofford presented his memorial to the Senate, complaining that he was denied the privilege of producing important testimony on the former hearing, alleging that much evidence of bribery and corruption by said Kellogg in procuring his pretended election had been since discovered, and asking that the case "be re-examined, to the end that justice may be done." This memorial was relerred to this committee, and the Senate, subsequently to that reference, ordered and authorized the committee to take testimony by the whole com- mittee or by subcommittee, with full power to seud for persons and papers, and to do all things necessary and usual in such cases. The committee have faithfully executed this order of the Senate. The memorialist and the sitting member appeared before the committee in person and by counsel. On the 5th of June, 1879, the full committee commenced the examination of witnesses in this city. The examination was continued in November and December by a subcommittee in the city of New Orleans, and was again resumed by the full com- mittee in this city, and was continued until both parties announced they had no further testimony to offer. Nearly one hundred and fifty witnesses have been examined, and over 1,200 printed pages of testimony have been taken and are herewith reported to the Senate, with the conclusions of law and fact at which the committee have arrived. - In the opinion of your committee, the evidence, now for the first time fully taken, clearly and abundantly establishes the following facts: J. That said William Pitt Kellogg, then holding the office of governor of the State of Louisiana, and pending the canvass in said election of 1876, did conspire with divere persons, and in aid of such conspiracy did fraudulently use the influence and power of his office of governor, to prevent a fair, free, and legal election in said State, to the end that he might procure from the commissioners of election the return of a legislature ii majority of whose members should be of the Republican party and presumed to be favorable to his election to the Senate. II. That, having failed in this, the said William Pitt Kellogg, still holding the oflice of governor, did conspire with divers persons, and in aid of such conspiracy did fraud- ulently use the influence and power'of his office of governor, to change the result as re- turned by the commissioners of election, to the end that he might procure, through false certificates of election, the organization of a pretended legislature a majority of whose members should be of the Eepublican parly, and supposed to be favorable to his elec- tion to the Senate. III. That said William Pitt Kellogg did conspire with divers others to prevent, andby force, through the metropolitan police, aided by the Army of the United States, did pre- vent the lawfully elected members of the legislature, and especially those of the Demo- cratic party, from assembling in the halls of the senate and house of representatives in the State-house of the Said State of Louisiana; and did, by threats, by the use of money, by the promise of offices, and by other corrupt practices, compel and induce to assemble in said halls, respectively, a mob of his co-conspirators, against the will of the people of Louisiana, many Of whom had not been elected, and some of whom had been neither elected nor certified, to the end that he might procure a pretended legislature for the in- auguration of Stephen B. Packard as governor, who, he well knew, had not been elected, and from which mob he might procure the form of his own election to the Senate, and which pretended election he knew such pretended governor would certify. IV. 'That said William Pitt Kellogg having thus corruptly procured the asseniblmg of a body of persons pretending to be a legislature, in which were included persons not elected and from which had been forcibly excluded persons who had been elected and t:erti6ed as members, did, by bribery, by the use of money and the promise of offices, and by other corrupt practices, induce said body of persons to go through the form of choosing him to a seat in the Senate of the United States. V That said William Pitt Kellogg, well knowing that the factsnow proven to exist did exist did falsely represent that no such facts existed or could be proven,seeking thereby to induce a maiority of the committee, .without taking the evidence which has now been taken, to make a report declaring his title to the seat, and with intent to induce a major- ity of the Senafe to admit him to the seat so fraudulently claimed. VI That to prevent the discovery of the briberies, frauds, and corruptions now proven to exist the said WUliam Pitt Kellogg did procure a large number of the persons com- posing said pretended legislature to be appointed to public offices of profit m the custom- house at New Orleans and elsewhere, as inducement not to disclose the truth, that, after other persons, officers and members of said pretended legislature had freely and voluntarily admitted, under oath, their knowledge of said briberies and corruptions, and had been summoned to appear as witnesses before your committee, and were under the protection of the Senate, said William Pitt Kellogg did, by bribery and corrupt prac- tices induce such witnesses to testify falsely 'that they had not made such admissions, or that, if they had made them, they were not true. 540 SENATE ELECTION CASES. The committee realize the severity of these conclusions, but they are more than justi- fied hy the evidence. In view of their severe character, however, the committee are unwilling to confine this report to a simple announcement of their findings, hut will incorporate in the report itself a portion of the abundant evidence which establishes their correctness. As illustrative of the evidence in support of the first conclusion before stated, your committee will here refer to the following facts: 1. In 1876 F. J. Stokes was parish judge of Grant Parish, appointed by Kellogg. One Ward was the supervisor of registration for said parish, also appointed by Kellogg. Be- fore the registration was completed Ward hid his books, and came to New Orleans and represented to Kellogg that he "was bulldozed and driven from the parish." Kellogg asked Stokes how the parish was. Stokes replied that ''whenever the people of the parish was voting the Democrats carried the parish. ' ' Kellogg said, ' ' If the people there don't want an election, we will throw the parish out. " Stokes testified most positively that the bulldozing pretext was false, and that the whole thing was fixed up to throw the parish out because it was Democratic. He says ' ' there was no bulldozing there at all. ' ' In answer to the direct question, "Was there any real danger to him (Ward) in stay- ing there (in the parish)? ' ' Stokes said, ' ' Not a solitary particle. There was no danger to any man in the parish if he staid there and behaved himself. They treated him (Ward) very quietly and nicely as long as he staid in the hill country, and they paid his bills up there in the hill country." - The hill country was the strong Democratic portion of the parish. Evidently to make a case of apparent fairness for the sitting member, Jewett testified that " Kellogg handed him a letter directing Ward to return to the parish." This let- ter he gave to Wa^d ' ' about the 1st of November. ' ' In reply to this Judge Stokes tes- tified that ' ' he (Ward) never started hack. It was no calculation to have him start. In the first place, to have started on the 1st of November, he could not have gotteii there. He told Kellogg at the time that the only way to the mouth of Eed Kiver was to take a stage." "He (Ward) actually did not go back." One fact puts the truth of this evi- dence of Stokes beyond possible doubt. Ward was allowed to remain in New Orleans until after the time for completing the registration under the law had expired, and then the pretended order to return was given him. Thus defrauded, the people of the parish held an election without registration, and the Democrats carried the parish, but it ' ' was thrown out. " 2. By the election laws of Louisiana the registration of voters was required to be com- pleted nine days before the election. The law also required that when the registration was closed the books of registration from the several parishes should be sent to the chief registrar's office in New Orleans. In this election of 1876, the books of registration, at least of the several wards in the city of New Orleans, were sent to the custom-house instead of to the office of the chief registrar. Peter Williams was the chief clerk and acting registrar of voters in 1876. Without his knowledge or consent, an order by telegraph was sent out to the super- visors of registration in his name, ordering the books to be sent to the custom-house. To this order the name of Williams was forged by Blanchard, Kellogg's clerk. Williams adds: "In the morning, when I came to the office I expected to find the books there, but I did notj and I went down then to the custom-house and found thft books there, and found them erasing names from them. ' ' Question. Who were erasing the names ? — Answer. The supervisors and their clerks. ' ' Q. That was at the custom-house ? — A. At the custom-house, sir. ' ' There is no denial by any one of this bold and shameless fraud and forgery. It is shown by various witnesses that the ' ' supervisors and their clerks ' ' were erasing names from these registration books during the night, and that a large number was erased, chiefly of Democrats. One of the Eepublican candidates for the legislature from the seventh ward of New Orleans (Moore) himself struck off " a large number of registered Democratic voters. " ' As illustrative of the evidence which shows the correctness of the second conclusion announced above, the following facts are cited: 1. Henry Houser was a member of the metropolitan police force, and was stationed as the night watch at Governor Kellogg's house A few days after the election he saw Blanchard, Jewett, Anderson, and Packard frequently at Kellogg's house at night. They often entered from the rear way. Witness frequently saw Blanchard and Jewett writ- ing in one of the rooms upstairs. They would come about 7 or 8 o'clock, and remain from 11 to 12. They had papers which looked like election papers. He heard Kellogg concede that the election for the house of rei5resentatives had gone Democratic, and Blan- chard told witness they were working on the election returns, and his understanding THE LOUISIANA CASES, 1873-80. 541 from them was that they were seeking, by throwing out parishes and working on Ihe re- turns to change the result, and make it Eepublican. They were thus engaged until aiter i'ackard s inauguration. This witness is strongly corroborated in several particulars, not only by conceded facts, but also by the witnesses called to rebut his testimony. A ihere can now be no reasonable doubt that the scheme to reverse the verdict of the ballot-box was batehed at these clandestine night meetings atKellogg'sown house; and the plan lor carrying out the scheme under the false pretexts of violence and intimida- tion ws^ here begun by those conspirators, of whom Kellogg was the chief. The frauds resorted to to change the result of the election in the seventh ward of New Orleans are now lor the first time fully disclosed. This result, changing 3 votes from the Demo- crats to the Kepublicans m the house, must be added to the many heretofore known and admitted. ■ •^ "The returns from the parishes showed that Nicholls, the Democratic candidate for governor had a majority over Packard, the Eepublican candidate for the same ofScc, of 8,010 votes. By the exercise of the unlawful powers already pointed out, and by Iho Irauds now proven, this majority was changed to a majority in lavorof Packard oi' 3,426 votes. "The evidence shows, and it is admitted by Mr. Kellogg, that Perkins, Democrat, had a majority for senator in the twelfth senatorial district; he beat Weber, Hepublican, -largely, but the returning board gave the latter a certificate of election. Meredith, Democrat, had a majority over Hamlety Eepublican, for the senate for the eighteenth senatorial district; the returning board gave Hamlet the certificate. Sandiford, Demo- crat, beat Blunt, Eepublican, for the senate in the twenty-second senatorial district; the returning board gave Blunt the certificate. " In Ouachita Parish Breard and Taylor, Democrats, beat Barrington and Brewster, Eepublicans, for the house of representatives, as the parish returns show; but the return- ing board gave the Eepublicans certificates of election. In East Baton Eouge Parish Dupr6, Williams, and Young, Democrats, beat Bird, Holt, and Lane, Eepublicans, lor the house of representatives; the returning board gave the certificates of election to the Eepublicans. In La Fayette Parish Marshall T. Martia, Democrat, hent, Fernest Mar- tin, Eepublican (these were brothers), for the house of representatives; the Eepublican received the certificate of election. "In West Feliciana Parish McGee and Eyland, Democrats, beat Swazie and Early, Eepublicans, for the house.of representatives. The Eepublicans, however, received cer- tificates of election. In Morehouse Parish Washburn and Hammond, Democrats, beat Shelton and Blair, Eepublicans, for the house of representatives, but the certificates of election were given to the Eepublicans. Jja De Soto Parish Pitts and Means, Democrats, beat Long and Johnson, Eepublicans; the latter received certificates of election. The re- turning board refused to count anyretums from the parishes of Grant and East Feliciana; the returns were thrown out absolutely. The parish returns show that Lyons and Porter, Democrats, were elected from East Feliciana, and Eandolph, Democrat, was elected from Grant Parish. "The parish returns show that the Democrats wele elected in each instance above mentioned, and Mr. Kellogg admits that they received majorities." (See his statement made to the committee on 13th o,f November, 1877.) Of the eighty-three persons who were said to be in the joint convention which elected Kellogg, nineteen are positively shown not to have been elected, but were fraudulently given certificates. Seventy- nine were necessary to make a quorum. The "work on the election returns " at K'ellogg's house was evidently effective, and' bore fruit through the returning board, one and sometimes two of whose members attended these clandestine night meetings. Mr. Steven, a member of the Nicholls senate, was seized and held by force, and was counted as present against his protest, to enable this Packard senate to go through the farce of a contest, and to seat two outsiders named Baker and Kelso, who were not elected by the people. The evidence in support of the third conclusion is furnished by the witnesses of both contestants. It is easy to understand that such a body of men so fraudulently assembled could not be kept together by a sense of duty or other legitimate means. Accordingly the State-house, which they seized, and in which they were gathered, was barricaded and surrounded with troops, and the members were keptin their halls day and night. Orders were given by the pretended oflicers of the legislature, and especially on the day of elec- tion, to keep members present by Ibrce. Some who were absent in spite of these precau- tions were fraudulently personated as present, and others were allowed to record their votes the next day. But many of the members were impecunious. "They needed money to meet their necessities, they had to live, and wanted to be helped from time to time as their money gave out." Louis J. Souer, who figures prominently in all these frauds m behalf of Kellogg, and who was a member of the lower house, advanced "out 542 SENATE ELECTION CASES. of his own money "about $3, 000, much of which he admits was never returned. John A. Walsh and other accommodating witnesses and friends of Kellogg also advanced money. These advances were called loans, made on warrants or vouchers. It is impossible to mistake the meaning of such testimony. "What Souer calls loans are spoken of by other witnesses very differently, who say these advances were bribes, but they were to be call ed loans if any question should arise about their character. The testimony given by the witnesses introduced by Kellogg himself is overwhelmingly convincing that force, fraud, and bribery were all needed to keep this motley crowd of conspirators against the people of Louisiana in their barricaded den of iniquity. In support of the fourth conclusion the evidence is equally convincing, for after all these frauds to cheat the voters, to change the returns, and to force an assemblage, Kellogg was in danger of losing the prize. Warmoth testifies : ' ' There was a bitter light for the Senatorship, not so much on my part, although I was spoken of, but between Kellogg and Pinchback. ' ' The witness himself ' ' was a dark horse, " thinking, may be, neither could be elected, and the honors would fall on him. " My eyes, ' ' he adds, ' ' were not altogether blind to that contingency." Even after Kellogg was nominated bethought itwas abso- lutely necessary for him to get all the votes in order to be admitted to the seat. Thus, both to secure the nomination and the election, the field for bribery and other corrupt practices was enlarged. Kellogg now added threats also. He declared if he was not elected he would disband the concern and turn them all over to the NichoUs government. Quite a number of witnesses have testified directly and positively that they saw Kellogg pay money to different members to vote for him for Senator. A large number are shown to have admitted that they received money for voting for Kellogg, and many of these admissions were made under oaths and taken voluntarily and without inducement. The evidence establishing direct bribery with money of a large number of the m embers la simply crushing. If a tithe of this evidence is credible there can be no escape from the conclusion that Kellogg secured his election by direct and unblushing bribery. Of- fices under Jihe Federal administration were also promised to secure the same result, and how feithfuUy these promises were fulfilled is unmistakably disclosed in the evi- dence. The evidence referred to in support of the four first conclusions before announced can leave no doubt in any rational mind of the correctness of the fifth conclusion as to the reasons which urged the sitting member so earnestly to oppose a full investigation on the former hearing of this case. If such investigation had been made, as it was once ordered by the Senate and resolved by the .committee, and the evidence now before us had been taken, it would be doing violence to all possible respect for the United States Senate to suppose the sitting member could have been declared entitled "on the mer- its" to take a seat in this body. It was indispensably necessary to conceal the facts to discover any merit in his title. In support of the sixth conclusion the evidence is, if possible, still more convincing. On the 5th day of May last the Senate directed this committee to investigate the charges made by the memorialist. It is significant that this order was adopted by the Senate only after the most earnest and persistent opposition ftom the sitting member himself. The passage of this order by the Senate to take testimony dates the beginning of eifforts by the sitting member and his assistants to suppress evidence, which your committee believe were never exceeded in energy and varied devices. The following special dispatches from Washington City appeared in the Times news- paper of New Orleans on the 13th and 16th days of May, respectively: Washington, May 12, 1879. In view of the interest the leading Republicans and the Administration take in the result of the contestfor Kellogg's seat, it is certain that any Eepublican who can be shown to have worked against him at home will stand a slim chance of any recognition from Hayes or the next administration if it be Eepublican. Kellogg is playing his hand for all it is worth, and don't intend to have any to in the rear if he can help it. W. H. E. Washington, May 15, 1879. Everything is not lovely in Eepublican circles in Louisiana; in fact, quite the reverse. There are said to be some people in the party who are not helping the Hon. William Pitt Kellogg as they ought, and one of them holds a high position in the custom-house. The party and the President are both rallying to the assistance of the Hon. W. P. Kel- logg with some solidity, and the Eepublican in Louisiana who refuses to. actively aid in THE LOUISIANA CASES, 1873-80. 543 this contest may make up his mind to go to the rear if Kellogg wins or the next admin- istration IS Itepublican. The Hon. John Sherman and Attorney-General Devens have signified their willingness to aid Kellogg in this contest all they can, and some of the custom-house rolls are very likely to he revised pretty soon. W. H. R. There can be no doubt as to the intent of this notice, and the evidence discloses with striking clearness the effect. It should be remembered in this connection that the frauds which were to be investigated could only, in their Jiature, bi: proven by those who were either members or .officers of the pretended Packard legislature, and by those who were permitted to have free access to it, and by others who were in Kellogg's confidence at the time the Irauds were committed. All others were excluded by bayonets from this barri- caded mock legislature, thus conspiring to defraud the people its members pretended to represeiit. They were plainly notified of the consequences which they must expect, both from this Administration and the next, who would dare reveal what they knew of these frauds, or who failed actively to prevent such revelation. The rewards were as unstinted' as the threats were positive. The examination by this committee began the 5th of June. During this month of June there were thirty-nine of the members of this Packa,rd mob of Kellogg conspirators holding Federal offices, nearly all in the custom-house at New Orleans, which constituted about one-half the number claimed to be present at the time of Kellogg's election. Thin v nine so employed appear by the testimony before your committee. Other statements have been made to the pub- lic increasing the number of said Pi'ckard legislators so employed to fifty-six. The object of these appointments is not left by the evidence to conjecture. The evidence is direct, positive, unimpeached, and undisputed that the object was to prevent revelations against Kellogg. 'H. T. Brown testified that Morris Marks (revenue collector, and who was one of Kel- logg's most active supporters) said to witness in June or July, ' ' I cannot take care of any of my friends now while this fight is going on about Kellogg. I have to appoint a set of G — d d — d curs and hounds to keep them from squealing on Kellogg." Morris Marks was present during the investigation by the subcommittee in New Orleans; wasactively at work for Kellogg; was himself a witness in behalf of Kellogg; and did not deny this statement of Mr. Brown. Similar statements and allusions frequently occur in the evidence, and they arc over- whelmingly corroborated by many facts. Witnesses were appointed to offices immedi- ately before they were to testify, and were also appointed promptly after they had testified satisfactorily to Kellogg. Witnesses who were clearly convicted of perj ury and lalse swearing before this committee were appointed to places, plainly as rewards for such per- jury and false swearing. Witnesses who were proven to have made admissions that they knew Kellogg was not elected, or that his election was corrupt, and threatened to reveal what they knew if they were not given offices, promptly received the offices and as promptly testified-that Kellogg was elected, and by the fairest means possible! The instances of this use of the public offices to hush witnesses, to procure witnesses, and to reward witnesses are as numerous as they lire disgraceful. Your committee do not believe such shameful civil service degradation can be found in the annals of any civilized people. It is pregnant evidence of all the charges of fraud and corruption against the sitting member. It cannot be supposed that such means were employed to maintain a title which was good "on the merits." It cannot he doubted that such means were employed only to maintain a title which was secured by fraud, and which could only be , retained by perjury. Your committee are not authorized to say and will not say that the President and certain of his Cabinet were willing parties to this corrupt use of the pablic offices; but they feel constrained to say that if they had been willing parties they could not have been more accommodating and compliant to the sitting member. The evidence clearly reveals another very striking and unusual method of using the public offices. Those who held the offices were not only themselves faithful to their chief and his title "on the nieiits" in their own testimony, but they were active and vigilant to make others so. They- ceased not to travel and labor in behalf of the sitting member to the uttei: neglect of their public duties, and without any cessation of their pay from the public treasury. Several members and officers of the body which pretended to elect Kellogg admitted, as the evidence shows, voluntarily, that there was no quorum present, that absent mem- bers were falsely personated, that the roll as made up was false, and that Kellogg had used bribery and corrupt means to secure his election. The memorialist, knowing the character of all these people who were parties to this enormous fraud, resorted to the natural precaution to have their statements reduced to writing and sworn to before vent- uring to summon them as witnesses. That such affidavits had been made, and that a number of those who made them had been or would be summoned to Washington as 544 SENATE ELECTION CASES. witnesses in behalf of the memorialist, became known to the sitting jnember's vigilaui. sentinels in the custom-house. One employd of the custom-house came on to Washing ton in advance of the witnesses, among other things ' ' to arrange with Kellogg " for cer' tain of the witnesses. A notorious detectiv& also came on in advance and registered iu this city under an assumed name. This detective testified that he was sent by an ofScei in the custom-house to watch the counsel of the memorialist and to aid Kellogg. Youi committee do not rely on the character of this witne&s to establish his credit. His very service for Kellogg was discrediting. Like most of the witnesses in this case, he is only entitled to credit as his statements are corroborated, and many of his statements are most strikingly corroborated, and much that he said is shown by others to be true. The oiHcer in the custom-house who is charged to have employed this detective was known to be very influential with the witnesses. He took the same train with the witnesses on their departure from New Orleans for this city. He traveled Vith them the entire distance; he exhorted the witnesses on the way to stand by their party; he telegraphed notice to Kellogg of the time they would arrive in Washington, and he remained with them^ ate with them, and slept with them until the examination here closed. It is shown, too, that from the time this investigation was ordered by the Senate until its close in this city an active telegraphic correspondence was going on between the sitting member and his assistants here and the collector of customs himself in New Orleans. The telegrams are in cipher, and are herewith reported to the Senate. They most clearly relate to the wit- nesses, and are pregnant with all the indicia of fraud, collusion, and corruption. The witnesses arrived in Washington about 10 o'clock p. m. on the 4th of June, and their examination by this committee was to commence the next morning. Whatever arrangements, therefore, were necessary to be made with or ratified by the sitting mem- ber to induce them, to deny the affidavits they had made in New Orleans had to be com- pleted during that night and before the meeting of this committee the ensuing morning. Accordingly the employes of the custom-house and the detective who came in advance from New Orleans and several others already in Washington in the Government's employ and Kellogg's service met the witnesses at the depot on their arrival. The detective swears that five of the witnesses were conducted by him, under previous arrangement, to Kel- logg's office after midnight. He says the witnesses were afraid of prosecution if they denied their sworn statements made in New Orleans, and that to relieve this fear some law was read to them to the effect that they could not be indicted for such denial. Being satisfied on this point, the witnesses were willing to contract, and the detective says did receive and accept from Kellogg money and promises of offices during his Senatorial term, and in consideration thereof did pledge themselves to disappoint the memorialist, who had called them as witnesses on the faith of their sworn statements, and to testify in all respects in favor of the sitting member. Thomas Murray ^id not attend this night conclave. He only of the witnesses was faithful to his statement made in New Orleans. He refused to accept the bribes offered hini to do so. He and the detective both testified that such bribes were repeatedly urged upon him in increasing amounts. Refusing persistently to accept all offers to testify falsely, he was then offered money not to testify at all. He was urged to disobey the summons of this committee and escape into Canada, where he was to be w^l maintained until the investigation was closed, and he should receive a telegram in the words, "The Union forever," by which he was to understand he could safely return. All these offers he refused, and did appear and testify, under the frowns of his comrades, to the truth of his previous statements. Another witness, Milton Jones, accepted the bribe but hesitated to commit the per- jury. In his stress he begged the counsel of the memorialist not to require him to testify, because he would be compelled to swear falsely under the influence of "big money. ' ' Because of this earnest appeal he was not sworn by the memorialist. This witness was asked by Kellogg, through his faithful detective, to return the money, the price of the perjury he had thus avoided committing, but he refused to return it. Sub- sequently he was called by the sitting member before the subcommittee iu New Orleans and made to execute his criminal bargain. Other devices were employed by the silting member to suppress truth and establish falsehood. Those who refused to swear falsely were assailed as untrue to their party and social ostracism itself was visited upon them. Schemes were contrived to entrap them into inconsistent admissions. Witnesses who admitted they thought it legitimate to make and to swear to false statements were called- to impeach the credibility of those who relused to imitate their example. Detectives were actively engaged under friendly professions in efforts to involve the memorialist in like briberies and frauds with -those so abundantly proven upon the sitting member, all of which your committee cheerfully report not only failed but recoiled heavily on the sitting member. Witnesses were diligently trained to believe that the ejection of Kel- logg from the Senate would be the defeat of the Republican party in the nation and in Louisiana; that such defeat would render it impossible for any Republican tolive in the State, and that perjury was a virtue when committed for the success of the Eepublicau THE LOUISIANA- ^AiSKS, 1873-80. 545 - party._AU these faets, and very, maay more of like kind wUl be found in the testimoay herewith reported to the Senate. That such is the testimony -was not denied before your committee either by the sittiuft member or his able counsel. Indeed, it could not be denied without denying the plain language ot very many witnesses. But it was earnestly insisted before your committee by both the sitting member and his, counsel that this testimony would not justify the conclusion that the sitting member was not entitled to the seat in the Senate for two reasons, and first because they alleged the witnesses, ought not to be behaved. 1 wo grounds are urged for disbelieving the witnesses: (1) because they were contra- dictea, and (Z) because they were impeached as not eatitled to credit on account of bad character. The contradictions were almost jexclusively by witnesses who were parties to -the crimes proven To illustrate: If a witness testified positively that he saw money paid to^ Member lor his vote, the implicated member was called to contradict this by testi- fying he did not receive money for his vote. Under this rule lew criminals would be lound guilty It freqaently happened, too, that the implicated member had previously and Irequently admitted, and often under oath, that he did receive money for his- vote So he contradicted himself as well as the witnesses. It will he seen frbW the evidence, too, that these contradicljing witnesses had often been provided with offi jes or other con- sideration after they made the admissions they were called to contradict, and other,s were promptly appointed to oflaces in the ever-accommodating custom-house after they had faithfully made the contradictions. Your committee attach little if any weight to such contradiftions. In our view they are often strongly confirmatory of the witnesses-in-chief Besides many of the material frauds proven are not disputed at all, and some are even admitted, because they were of a character which did not admit of contradiction. This is especially true of the frauds resorted to to' prevent a fair election by the people; to change the result as returned by the commissioners of election, and the force and frauds employed to assemble and keep -together the pretended Packard legislature. Let us then proceed to consider the allegation that the testimony should'not be be- lieved because the witnesses were impeached on account of general bad character. Some few of the witnesses were not so impeached at all, and why they were not im- peached your committee do not understand, since the impeaching resources of the sitting member seemed to be exhaustless. As it is, however, the testimony which is uuim- peached and nncontradicted is ample not only to justify but toi require the adoption of the resolution herewith submitted. But your committee do not find it necessary to rest their conclusions solely on this unimpeached and uncontradicted evidence. We admit that a great number of the witnesses called on both sides were of very bad character, not only for truth, but for every other virtue, and if their credibility depended solely upon character they ought not to be believed. But the rules of law furnish sale guides in weighing this evidence. The accomplice of a-criroinal is necessarily of bad character, for he is a criminal him- self. If he is not to be believed because he is an accomplice, and therefore of bad char- acter, then an accomplice in no case ought to be aUo.wed to testify, But in spite of bad character they are often the only accessible witnesses, and their evidence is often most satisfactory. Were it otherwise, those criminals would often be safest whose crimes were greatest. ' , In the case before us nearly all the witnesses examined were the accomplices of Kel- logg ill the crimes and frauds which resulted in his pretended election to the Senate. They were all conspirators against the people of Louisiana. The very fact that they were associates and accomplices in this conspbacy furnished the most conclusive proof of bad character. No other proof was needed to establish such bad character. The con- spirators were surrounded with troops by order of their chief, Kellogg himself, by his power as governor, and the Army was employed to prelect them day and night from in- trusion by people worthy of credit by reason of good character. Being faithless in their very assembling to all good people, the chief chance of redress tor good people was in the natural hope they would beconje faithless to each other, and reveal the frauds, briberies, and porrnptions which cemented them for evil. . Their revelations appear in the evi- dence, and your committee do not douht would far more abundantly appear if the Fed- eral Administration would withdraw the pa,tronage which has purchased the silence and perjury of so many of the gang. , All the facts and circumstances of corroboration required by the rules of evidence to accompany the testimony of accomplices abundantly and most remarkably sustain the witnesses who testified to the frauds, briberies, and corrupt practices upon which we have based our conclusions, and the impeaching witnesses are themselves most strikingly discredited bysuch fiictsand circumstances. Indeed, your committee do not hesitate to, afiOu'm that much of the evidence must be believed, because the corroborations which accompany and surround it make it impossible that it can be false, S E C — 35 546 SENATE ELECTION CASES. The sitting member insisted upon conducting much of the examination in his own behalf, and this privilege was accorded him. In the style of his questions and the con- duct of his cause he often exhibited most striking corroboration of the witnesses who were testifying of his guilt. The corroborations brought out by himself not only occurred in his cross-examinations of the witnesses called by the memorialist, but also in his exam- inations of witnesses called by himself to impeach or contradict the witnesses of the memorialist. Your committee are unable to see how an impartial legal mind can read the evidence taken an3. doubt the guilt of the sitting member upon every charge which has been made against him, notwithstanding so many of the witnesses must be admitted to be disrep- utable. But the sitting member, through his very able counsel, also insisted, with great ear- nestness and skill before your committee, that the Senate at a former session having, " after and upon evidence going to the merits of the case," declared that Kellogg was "upon the merits of the case entitled to the seat," this decision is final and conclusive, and cannot now be re- examined and reversed. This was the first and chief position on which the title of the sitting member was made to rest. Your committee have fully considered the question thus presented, and cannot doubt the correctness of the conclu- sions at which they have arrived. Stated in the light of the facts now known and herewith reported to the Senate, this position would read thus: That though the sitting member was not, in fact, chosen by the legislature of Louisiana; and though the body of men alleged to have elected him was assembled through fraud, was held together by force, and was controlled by bribery and corruption, and all this was accomplished by a conspiracy to defraud the State- and people of Louisiana, of which conspiracy the sitting member was himself the chief, yet, the Senate having decided in ignorance and by the suppression of these facts that the sitting member was entitled on the merits to the seat, the Senate is compelled to allow him to retain the seat after full knowledge that every fact which was assumed to exist when he was admitted is and was false and untrue. The reply to such a position is suffi- ciently furnished in the statement of the position itself. But your committee will not rest the argument here, and will consider it in the light of precedent and law. Counsel for the sitting member says: "If, therefore, this committee and the Senate shall set aside this j udgment on the merits, it will present to the country and the world a spectacle not seen before in the century of our national existence just closed." We might justly reply to this that this case, in the facts now proven, already presents to the country and the world a spectacle not before seen in this century or any previous century of this or any other nation. We trust such a spectacle will never again be pre- sented, and that it may not be it ought to be now condemned by all men and especially by this Senate. If it shall be understood that seats once procured in this body by any means however false and fraudulent which bad men may employ cannot be taken away, this Senate may soon be largely composed of members not chosen by the legislatures of the States. Successful frauds will displace the positive requisition of the Constitution in the elections of Senators. A case without precedent cannot be decided by precedent. Fraud has certainly become a powerful agent in our politics, but we are not willing to admit it has yet become the supreme law above review and beyond remedy. But while no case like this was ever before presented for decision, yet principles have been announced in other cases which will furnish some guide to a proper determination of this question. In the case of Bright and Fitch, in the Thirty-fifth Congress, the rehearing asked was refused because "all the facts and questions of laW' involved were as fully known and presented to the Senate on the former hearing as they were then pr&sented in the me- morial of the legislature asking a rehearing." It was held that in such a case the.judg- ment first rendered by the Senate"" was final, and precluded further inquiry into the subject." In the Butler and Corbin case, in the Forty-fifth Congress, the report of the minority of the Committee on Privileges and Elections correctly stated that no allegation was made "that testimony was before excluded which ought to have been admitted, or that testimony was admitted which ought to have been excluded; no request by either party to produce testimony had been denied, and no pretense that testimony then offered and excluded can now be produced; The jurisdiction is the same; the parties are the same; the subject-matter of contest is the same; the facts are the same, and the questions of law are the same." The report further said: "If, on the former hearing, Mr. Corbin had been denied the privilege of introducing material facts which he offered to produce; if he presented material facts now which were then unknown; if all the facts and ques- tions of law now known and presented were not then as fully known and presented, the undersigned will not undertake to say his petition for a rehearing ought not, in justice THE LOUISIANA CASES, 1873-80. 547 ^ets^^hA^h tf^?r^^ ^T^ ^"f considered on the merits." The Senate adoped these 3\onnl.nt Tvrt T^ ff'^'^^V^*. ^'^^^ "" ^^^^^ '^'^'^ intelligent minority of the Senate B.ne^lTZfZl/T^7 admit that a decision rendered on the merits onght not to he LmiW rnlf r+?,t '''''^•f ^ "^^'^ht or even doubtful grounds. In the cotirts the sSi wmild Jiif '^^Y'^®°*=^^^^"*^''"^ reversal^'ought to be material and ZL^tr^rJnJn ? ^J""^"'^ "" ^'^^''^^^ Tesult." In this case your committee are bPrmfir^rt ^^/.t f '^"'°?'^ *^?*' *^°"S^ ^l'^™ i« ^° reason why a stronger should be required. Let us adopt and apply the rule so strongly and forcibly expoiSded by a ^'1^'^P'I^^'^,^®"'^^^ °f tl'is Senate in the following llngnage: ^xpounaea Dy a »nfl 1.1 °''^?A°''^'^ do manifest injustice were it hastily and without the most plain ^ht Tf "^^^^^^ ^«'i«°'' to reverse a decision that had been made seating a Senator on All fW T « J fr T® ?"l* be extremely strong that would justify such a proceeding. All that I am free to admit, but to say that the technical rule of res adjudicaia that ap- plies to courts of justice applies in this chamber on a question of this kind is to confound MayTpaS ) ^'^'^^^^^ *^^ *^^ ^^""^ •'^ *^ ^°^y-" (Congressional Record of Let us now apply this rigid rule to the present case: h °v *?^ ^°^°^J hearing not a single witness was examined. Some admissions were made by the parties and some reports of investigations by Congressional committees not on the issues involved in this contest "were agreed to be considered in evidence as far as they were pertinent." This was done only to narrow the field of investigation On this hearmg nearly one hundred and fifty witnesses have been examined, making over 1,200 prmted pages of testimony of the' most material and controlling character. 2. On the former hearing the memorialist begged and pleaded for the privilege of hav- ing witnesses called and examined on five points not covered by the admissions and re- ports above referred to, and by which witnesses he alleged he could prove, among other things, the direct personal complicity of the sitting member in glaring frauds in the pre- tended legislature which elected him. All these appeals were refused by the majority of the committee, although an investigation had been previously ordered by the Senate and resolved upon by the committee, and the investigation was suddenly closed against the protest of the memorialist and a minority of the committee. On the present hearing the witnesses -have been examined, and the complicity of the sitting member in the frauds alleged has been most convincingly established. 3. On the former hearing there was no evidence and no opportunity to produce evi- dence showing conspiracies, briberies, and othet corruptions by the sitting member to procure a fraudulent legislature, and to control the members thereof in his own election to the Senate. On the present hearing such conspiracies, briberies, and corruptions pf the most start- ling, unblushing and unparalleled character have been positively testified to by numerous witnesses, and these briberies and corruptions have been shown to extend to the witnesses in the case in the very face of the Senate. Your committee could multiply the features of contrast between the former and the present hearing in this case, but we forbear. Fnder the most technical rule of res adju- dieata there is not a court in civilized Christendom which would hesitate to review anjl reverse a judgment so utterly unauthorized and unjust; and surely it cannot be con- tended that the Senate can have less power than a court to annul such a decision. Conceding then, lor the argument, that the Senate in parsing upon contests for seats in this body acts as a court, and that the technical rule of res adjudkata applies to de- cisions rendered in such cases, do courts not re-exainine, review, and reverse their decisions ? Are not appeals, writs of error, motions for new trials, and bills of review familiar to us all ? The Senate, in considering .such cases in the first instance, is not bound by the forms of proceedings in the courte. We have no declarations, no complaints, no bills in chancery, nor pleas, demurrers, answers, and joinders of issue in the Senate. If the Senate proceeds to original judgment without the pleading known to the courts, may not the Senate also proceed to review, re-examine, andreversesuch judgments when good ca-use is shown, without resorting to the processes which in such cases are known to the courts ? If the Senate is a court, then if the facts in a given case are such as would re- quire the vacatiort of a judgment if rendered by a court, surely the Senate would also be authorized to vacate such judgment. The exclusion by the court of material testi- mony on the first hearing, the discovery of new and material evidence since the hearing, the existence of frauds, forgeries, briberies, ind perjuries in procuring the first judgment are all well-known grounds on either one of which courts, by some of the methods of proceeding, will review and reverse such judgments. All these grounds are .«hown by the evidence and the records of this Senate to exist in extraordinary clearness, force, and repeated abundance in the case we are now considering. Is the Senate, by being likened to a court, to be bound by decisions which a court would rigorously vacate and annul? 548 ^ SENATE ELECTION CASES. But the attempt to apply to the Senate the technical rule of res adjudSfcata as it ohiaihs in the conrts is a palpable sophistry and not aa argument. In the corrrct and forciTile' language of Senator Thurman, beibre quoted, "it confounds all distinctions and disre-' gards all the rules of this. bodj."' In cases where the contestants claim to represent the same State governinent, aiid the issue between them is one of informality or irregularity, or non-compliance witli statu- tory provisions, there would be some show of reason for the apjjlication of this doctrine. In such cases there ought to be an end of litigation in the Senate as well as in thecourta. A wise policy would, certainly require in such cases, the principle if not the rule of res' adjudicata. It is to such cases the authorities cited by the eminent counsel for the sit- ting member were intended to apply. But the questions involved in the present case rise immeasurably above such issues. They are not questions of. regularity, but of authority. They are not questions of dis- cretion, but of duty. They exist more between the State of Louisiana and this Senate than between the contestants. In their nature these questions arc not merely judicial, hut political in the highest sense. , The Constitution says: ''The Senate of the United States shall he composed of two Senators from each State, chosen by the legislature thereof, '* . Can a man sit as a member of this Senate who was not chosen by the legislature of his State? But suppose, in ignoranceof the fact; that he was not so chosen, the Senate is induced to declare him entitled to the seat "on the merits,." after investigation; 'does such erroneous decision supplant the Constitution and give him a title after the mistake becomes known ? .. Let us suppose an impossible case: Suppose a majority of this Senate should for any purpose, partisan or otherwise, seat a mail in this body who they knew, was not chosen by the legislature of his State, would any future Senate be compelled to continue such person in the seat? Would not such continuance be as criminal as the original admis- sion ? Will any man pretend that a plain constitutional provision can be superseded by a mistaken decision of this Senate ? If the sittingmember was not chosen by the legis- lature of Louisiana, every hour he sits on this floor after that fact is known is a violation of the Constitution. It is a question of obedience to the Constitution : Can any person estop this Senate, can the Senate estop itself, froin obeying the Constitution ? Can the Senate estop itself from inquiring toHes guoties whether he was chosen by the legislature? Can it be so estopped by its own erroneous decision on a former hearing? " , ■ In cases like the one now before us, your committee do not hesitate to adopt the lan- guage e'mployed by those eminent constitutional lawyers, Mr. Cbllamer, of Vermont, and Mr. Trumbull, of Illinois, in the Fitch and Bright case in 1859. They said: ' ' The power of the Senate to judge of the election and qualification of its own mem-, hers is unlimited and abiding. It is not exhausted in any particular' ci^e by once adju- dicating the same, as the power of re- examination and correction of error and mistake, incident to all judicial tribunals and proceedings, remains with the Senate in this respect, asvwell to do justice to itself as to the States represented or to the persons claiming or holding seats. Such an abiding power must exist to purge thie body from intruders, oth- erwise any one might retain his seat who had once wrongly procured a decision of the Senate. in his favor by fraud or falsehood, or even by papers forged or iabricated." In the light of the evidence now before the Senate the sitting member vvas admitted by a wrongly procured decision of the Senate in his favor" by means quite as criminal as those, stated in the last paragraph quoted, since tlje means employed by him to secure his pretended election includedconspiracies, briberies, and perjuries often repeated, and the knowledge of which was vigorously suppressed on the former hearing. He was not chosen by the legislature of Louisiana., He was chosen bya body of men who conspired with him to defeat the will of the State, and wlio excluded by force the members elected by the people in order that the conspirators might be enabled to accomplish their work. The primary, authority to determine what is the legislature of aStatels and must be the State herself. When the State determines that question for herself it is determined for all the world. In case there are two governments, or two bodies each claiming to be the, true government or the true legislature of the State, and the State has not determined the controversy, the duty may devolve upon others, and in this case upon this Senate to adjudge that question ^ro /iae Dice. In January, 1877, a portion of the members elected by the people ijnited with others not elected and seized the State-house by co-operation with the.gitting member, who was then actingas governor, were barricaded in the building, which was surrounded with troops, and refused to permit other elected njembers to beadmitted into thebuilding. The bar- ricaded persons called themselves the legislature, and the excluded members met in St. Patrick's Hall and called themselves the legislature. This was the condition of things ^1)61) the sitting member jiresented his credeuti.nls to this Senate and asked to be ad- THE LOmsiANA CASfiS, 18f3-80. 549 to *the On^i^ml"" o'? ??°''- ^^ "^"^ not admitted, but hia credentials were referred whateverThT^is?. f>, "^^^il^"*^ Elections. Before tbe committee took any action 7t wrdedded th!t ♦r-'ifT^ iDetween these two rivalTDodies was settled bythe State. tL trae wtlHtirP 5f>,^°i^.^ ■'""^ organized in St. Patrick's Hall was siana and bv ^11 fT, i^*" ^^^- ^^'^ '^^"'^^'^ ^'^ '«^°epted by all fbe people of Loui- Eemesentw^ \,i^\'^''?f '"?^°*^ °^ ^^' government, by th6 President and House of bv aTth™nn= t ^^ ^^^ ''"^?''J* ^""^ "^^'^ «* <=°«'^^ "'■ .4j?n"i! 20, 1874. Mr. Carpenter, from the Committee on Privileges and Elections, to whom was referred the memorial of Francis W. Sykes, claiming a seat in the Senate as Senator from the State of Alabama, submitted a report (No. 291), with a recommendation that the committee be discharged from the further consideration of the memorial. Mr Saulsbury asked and obtained leave to submit the views of the minority of the Committee on Privileges and Elections on the foregoing memorial; which were ordered to be printed to accompany the report of the committee, 56.8 SENATE ELECTION CASES. EEPOET OF COMMITTEE. [The committee consisted of Messrs. Morton (chairman), Carpenter, Logan, Alcorn, An- thony, Mitchell, Wadleigh, Hamilton of Maryland, and Saulsbury.] In the Senate of the United States. Apeil 20, 1874. — Ordered to be printed. Mr. Carpenter submitted the following report: The Committee on Privileges and Elections, to whom was referred the memorial of Francis "W. Sykes, claiming to be Senator- elect from the State of Alabama, together with accompanying documents, respectfully submit the following report: Mr. Sykes claims the seat now held by Hon. George E. Spencer as Senator from the State of Alabama; and his claim is based upon the assertion that the body^laiming to be the legislature of the State of Alabama which elected the said Spencer was not the rightful legislature of that State, but that another body of men was such legislature; and that the latter body, on the 10th day of December, A. D. 1872, duly elected the said' Sykes to be the Senator of the United States for that State for the term of six years com- mencing on the 4th day of March, A. D. 1873. It is a fact that for some time after the day fixed by law for the organization of the legislature of that State, in 1872, there were two bodies, each claiming to be the legisla- ture of that State — one known as the State-house legislature, which pretended to elect Mr. Sykes, and the other known as the court-house legislatutp, which pretended to elect Mr. Spencer; and the question is, which of these two bodies ought to be considered the rightful legislature at that time ? On the 3d day of December, 1872, the court-house legislature, so called, pretended to elect Mr. Spencer. The governor of the'State certi- fied that Mr. Spencer had been duly elected on that day by the legislature of the State; and the Senate, upon that certificate, seated Mr. Spencer as a Senator ibr the term in question. The first question is, therefore, Whether the body of men which pretended to elect Mr. Spencer can properly be regarded as the legislature of the State at the time of such pretended election. If so, Mr. Spencer's election was valid, and, of course, if that be so, Mr. Sykes can have no right to the same seat during the same term. The general election in that State was held on the 5th day of November, 1872. The time fixed for the meeting of the legislature thereafter was on the 18th of November, 1872. The constitution of the State provides, section 6, Article IV: " The house of repre- sentatives, when assembled, shall choose a speaker and its other officers, and the senate shall choose a president, in the absence of the lieutenant-governor, and its other officers; each house shall judge of the qualifications, elections, and returns of its own members, but a contested election shall be determined in such manner as shall be directed by law. The president of the senate and the speaker of the house of representatives shall Remain in office until their successors are elected and qualified," By Article VIII of the constitution of Alabama, the house of representatives is declared to consist of one hundred members, apportioned among, and elected from, the counties of the State as directed in said article. The senate consists of thirty-three members, elected by the voters from the senatorial districts, as directed in said article, and these two bodies constitute the general assembly of the State, and in them, by section 1, Article I of the constitution, is vested the legislative power of the State. By section 38 of the revised code of Alabama, which was re-enacted and continued in force by an act approved .July 29, 1868, the general assembly is required to convene in the city of Montgomery. It is provided by the act to regulate elections in Alabama as follows: " Sec. 33. Beit further enacted, That one of the inspectors must number each biJlot with the same number as the name of the voter on the poll-list, and the ballot must then, without being opened or examined, be deposited in the proper ballot-box. ' ' Sec. 34. Be it further enacted, That there shall be no challenging of electors appearing to vote at any election hereafter held in this State, and any registered voter appearing to vote at any election in this State shall be allowed to do so without question, challenge, or objection by any person; and any person who questions, challenges, or objects, or who unlawfully hinders or delays any person offering to vote, shall be guilty of a misde- meanor, and, on conviction, shall be fined five hundred dollars, and. on failure to pay the same, shall be imprisoned in the county jail for six months. "Sec. 35. Be it further enacted, That it shall be the duty of the inspectors of all elec- tions in the election precincts, immediately on the closing of the polls, to count out the votes that have been polled, and, after so doing, to promptly certify the poll-list, seal, up the boxes containing the ballots and poll-list, and deliver them to ihe returning officer, who shall deliver such sealed boxes to the judge of probate within forty-eight hours SYKES VS. SPENCER. 559 after they may be delivered to him, and take a receipt from the judge of probate for such sealed ballot-boxes. j & r "Sec. 36. Be it further enacted, That judges of probate, sheriffs, and clerks of the cir- cuit court, or any two of them, of the several counties are hereby constituted a board of supervisors oi elections in and for their respective counties; and it shall be the duty of said board ol supervisors to open, compare, and count the ballots cast at all elections. bEC. 61. Be It further enacted, That it shall be the duty of the board of supervisors of elections, upon good and sufficient evidence that Jraud has been perpetrated, or unlaw- ful or wrongful means resorted to to prevent electors from freely and fearlessly casting their ballots, to reject such illegal or liaudulenfc votes cast at any of such polling places, which rejection, so made as aforesaid, shall be final, unless appeal is taken within ten days to the probate court; and in case of a tie for any county officer, the board of super- visors shall decide. "Sec. 38. Be. it further enacted, That it shall be the duty of the board of supervisors, withm hve days from the date of receiving the sealed boxes and certificates of the num- ber of votes cast at each polling place from the inspectors, to make certificates, on blanks furnished by the secretary of state, of the exact number of votes cast in their county for each person, stating the office such person is voted for, a^d forward them, excepting for governor, lieutenant-governor, secretary of state, auditor, treasurer, and attorney-gen- eral, to the secretary of state, who shall, after such returns have been duly examined by the secretary of state, be filed as other public papers required to be kept in his office, and shall be subject to the inspection of any elector of this State. " Sec. 39. Be it further enacted. That the board of supervisors shall forward a certified return of election for governor, 1 ientenant-governor, secretary of state, auditor, treasurer, and attorney-general to the presiding officer of the senate at least thirty days before the time fixed for the meeting of the next general assembly. ' ' Sec. 40. Be it further enacted. That it shall be the duty of the presiding officer of the senate, within five days after the assembling of the general assembly, in the presence of a majority of the members of the general assembly, to open the returns and proclaim the result of such election, after which they shall be filed in the office of secretary of state, as required by section thirty-seven of thig act. "Sec. 41. Be it further enacted. That it shall be the duty of the secretary of state to furnish, from time to time, the board of county supervisors with all necessary blanks upon which to make election returns. "Sec. 42. Be it fiirther enacted, That it shall be the duty of the secretary of state 'to forward certificates of election to such persons as may be ascertained to be elected to any office in this State, addressed to the board of supervisors, at the court-house of the county in which such person returned as elected may reside, within ten days after receiving such returns of election from the supervising board of the county; and it shall be the duty of said board of supervisors to forward said election certificates to the persons en- titled thereto." Section 7 of Article IV of the constitution provides as follows: "A majority of each house shall constitute a quorum to do business, but a smaller number may adjourn from day to day, and may compel the attendance of absent mem- bers in such manner and under such penalties as each house may provide. " On the IStli day of November, 1872, the day fixed by law for the assembling of the legislature, eighteen persons holding the required certificates of election as senators, issfied to them by the secretary of state, appeared in the senate chamber in the capitol at Montgomery, and at 12 o'clock noon were called to order by the holding- over lieuten- ant-governor, Moren. They exhibited their certificates of election issued to them by the secretary of state, enrolled their names as senators, took the oath of office in due form, and proceeded to the election of officers pro tempore, viz, secretary, assistant secretary, and other officers. On the next day another senator presented his certificate, enrolled himself,-and took the oath of office, in pursuance of section 48 of the revised code of Alabama. All of said senators took the oath prescribed by Article XIV of the consti- tution before the Hon. J. Q. Smith, one of the circuit judges of the State of Alabama. On the next day the senate, so constituted, proceeded to elect its permanent officers, all its proceedings being under the presidency of the Hon. E. H. Moren, lieutenant-governor of the State. Said proceedings were had by a majority of the whole number required by the constitution to constitute a senate. On the 18th day of November, 1872, at the hour of 12 o'clock noon, the Hon. John P. Hubbard, speaker of the previous house of representatives, took his seat at the speaker's desk in the hall of the house of represfentatives in the capitol in Montgomery, and called the house to order. Less than one-half of the hundred persons who consti- tute a full house appeared in their places. These persons exhibited certificates of elec- tion to the house of representatives issued to them by the secretary of state, as required by the act before quoted, enrolled themselves as members of the house, and adjourned TintU the next day. 560 SENATE ELECTION CASES. Pursuaut to adjournment, the-housfi met the next day iu the same hall, but sti H lea.» than one-half of the whole number of members appeared, though some additional mem- bers appeared and presented their certificates of election, issued to them by the secretarj of state, and enrolled themselves as members of the house. An adjournment was theii had to the next day. On Wednesday, the 20th of November, 1872, the house was again called, to order, wjien fifty-three members appeared. Those who had not been previously enrolled pre- sented their certificates of election, issued to them by the secretary of state, and were enrolled. All of said persons so appearing and presenting their certificates of election- took the path of office required by the constitution, the same oath being administered to them as was administered to the members of the senate by the Hon. J. Q. Smith. The house of representatives thus assembled then proceeded to the election of a speaker, and Hon. Lewis M. Stone, holding a certificate of election issued to him by the secre- - tary of state as a member of .said house fmva. the county of Pickens, was chosen speaker of said house of representatives. All of these proceedings of said house were taken by it under the presidency of Hon. John P. Hubbard, the speaker of the previous house of representatives, who, until the election of his successor, occupied the chair. Mr. Hub- bard, upon the election of the new speaker, retired and Mr. Stone assumed the duties of , speaker of the house. The house then proceeded to the election of subordinate officers, and so fully organized itself, as the senate had previorwly, under the authority of Article ly, section 6 of the constitution of Alabama. These two bodies of men constituted what is known as the State-house legislature, which pretended, to elect Mr. Sykes as Senator. This legislature was recognized by the Hon. liobert B. Lindsay," who, under the constitution, remained governor of- the State until the canvass of votes subsequently made by the State house legislature, when it was.ascertained and declared by them that Hon. David P. Lewis had been elected gov- ernor: and thereupon the. said Lewis tpok the oath of office and entered upon thedis- charge of its duties. On the same 18th day of November, two other bodies of men assembled at the court- ■ house, one claiming to be the senate and the other the house of representatives — the legislature of said State. After Governor Lewis was inaugurated he recognized the court-house legislature as the proper and legal legislature of the State. The contest between these two legislatures depends upon this: In the State-house legislature were eight or nine members who had received regular certificates of election, but who are conceded not, to have been elected. There were of this class a sufficient number,, together with unquestioned members, to make a quorum in both houses of the State-house legislature. In the court-house legislature, persons claiming the seats of this class of members of the State-house legislature assembled with others who were undovibtedly members-elect to the senate andhouge of representatives, and thereby con- stituted in numbers a quorum of the two houses at the court-house. And the question is, whether at the time the election of Spencer took place by the court-house legislature that legislature, composed of a quorum of the persons actijally elected, should be re- garded as the legislature of the State; or whether the State-house legislature, a quorum in both houses being made by this class of persons who in fact were not elected, but had the regular certificates of election, should be regarded as the legal legislature. And this again depends upon another question; whether for the time being, and until some decision by the two houses could be arrived at, the eight or nine persons holding certifi- cates -without the election or the eight or nine persons elected but having no certificates are to be considered as entitled to act and form part of the legislature of the State. ^ It is provided by the law of the State, "passed in pursuance of section 6, Article IV of the Constitution, among other things, as follows: "Sec. 45. That the election of persons declared elected to any office,. whether State, county, Eepresentatives in Congress, or to any office which is 'filled by a vote of the people, may be contested, by any qualified elector of this State for any one or more of the following causes: First. Malconduct, fraud, or corruption ou the part of any in- spector, clerk, returning officer, or board of supervisors. Second. When the persons whose election to such office is contested was not eligible thereto at the time of such eleoiion. Third. On account of illegal votes. Fourth. Aiiy intimidation, threats to discharge from employment, offer to bribe or bribery, violence, abuse, or any other mis- conduct calculated to prevent a fair, free, and full exercise of the elective franchise. But no person can contest the election of any person to. any office on account of race color, or previous condition. , , "Sec. 46. that no testimony must be received of any illegal votes or other grounds of contest unless the party contesting has given to the adverse party notice in writing of the cause or causes which he expects to name on the trial, which notice must be served personally at least ten days before the trial. "Sec. 47. That whenever any elector chooses to contest any election to any office em- SYKES VS. SPENCEE. 561 ^hp'^'^nrJiP^^^nt- "^J"^ "f"^* T'^!'' Statement in writing setting forth specifically, first, !trH' n„ y,i»^»;,^K;P^* " shall be the duty of the probate judge to deliver to either party, trl^ ofTe .onTil'A"!?'"^" ^''^ poU-listson being paid his legal fees therefor, and on th^ SnrVth. nri^fni if'^^f °* P^^^a^ shall be required by a subpwna duces tecum to S! i?»tJS, ^ ^1 Ppll-l'ste and ballots, filed in his office for enumeration, which shall v^t^rrd^fo^wTotrvotei^^'^^"'*^^^ '^'=*'^^^* *^^ ^-^^^ --^ -^^^ p°"-i-^, >i,» f»n'!:i!;=Ti"^lr^,,^^^''*°r contesting the election of any senator or representative to 1^ itn. 1 f T? ^' ^^ '^^'* ^"^^ ^"^ security for the costs of such content, which must be acknowledged before and approved by the clerk of the circuit court of any county of the senatorial district, if such contest be for the election of a senator; or if tbr the elec- tion of a representative, by the clerk ot the circuit court of the county in which such election was held. j > ^^ cii^.i "Sec. 52. That the contesting party must next give notice to the person whose elec- tion is contested, by having served on him, or left at his usual place of residence, by the sheriff or some constable, a copy of the grounds of contestation and affidavit, as required by the provision of section 45 of this act. "Sec. 53. That the security for costs must be given, and the person whose election is contested notified m the mode prescribed in the preceding section, within twenty days after he is declared elected. "Sec. 54. That the original "statement of the grounds of contest and affidavit must, after such service, be returned to the office of the clerk of the circuit court in which security for the costs has been given, with the return of the officer indorsed, which is pre- suinptive evidence of the service. * ' * * * * * * "Sec. 61. That testimony taken in contests of election under tjiis act must be certi- fied, indorsed, and sealed up, as is required in taking depositions at suits at law. And if the contest is of the election of a senator or member of the house of representatives of the general assembly, the depositions must be directed to the presiding officer of that branch of the general assembly before which such contest is to be tried, at the seat of government, and deposited in the nearest post-office. "Sec. 62. That on the determination of such contest, the secretary of the senate or clerk of the house, as the case may be, must tax the costs due to the commissioner, wit- nesses, the sherifi' and other officers, for serving notices and subposnas as for similar ' service in courts of law, and certify the amount of each separate item, the name of the person entitled thereto, and the result of such contest, to the clerk of the circuit court, in which security for costs is required to be given by the provisions of this act. And the clerk of such court m^st thereupon issue execution in favor of the successful party for the amount of such costs; specifying the items, the amount of each, and the persons en- titled thereto, in the bill of costs, which execution must be made returnable to the term of the circuit court of such county next after its issue, and may be issued as often as may -be necessary, and must, when collected, be paid by the officer collecting on demand to the parties entitled thereto." It is. not pretended that the persons who were elected, but had not received certificates of election, took the steps required by this statute to contest the seats of the persons who held the certificates, but had not been elected. It is claimed, and with great force,'that, until a contest, in the manner provided by law, the members who had received the cer- tificates of election, although those certificates had been erroneously delivered and they were not in fact elected, were entitled to sit as members of the legislature. It is un- doubtedly true that had all the persons claiming to be members of the legislature met in the State-house, and the two houses had proceeded there to organize, the persons holding the certificate, without the election, would have been entitled to their seats until the persons who had been elected, but had received no certificates, should make contests for their seats and their claim should be determined by the houses themselves. The matter, then, comes to this: The State-house legislature was the legislature in form, and the court-house legislature was the legislature in fact. While these two pre- tended legislatures were in existence, each claiming to possess the legislative power of the State, Spencer was elected to the Senate by the court-house legislature, and Sykes was elected by the, State-house legislature. Spencer was first elected, and on the day of bis election the court-house legislature was recogniised by the govt-rngr fis the legal legis- S E —36 562 SENATE ELECTION CASES. lature of the State. Therefore, in determining as to the right of- Spencei' or Sykes to this seat, the Senate is compelled to. choose between the body in fact elected, organized, act-, ing, and recognized by the executive department as the legislature, and another body, organized in form, but without the election and without a recognition on the part of the executive of the State at the time they pretended to elect Sykes. When we consider that all the forms prescribed by law for canvassing and certifying an election, and for the organization of the two houses, are designed to secure to the persons actually elected •the right to act in the of&ces to which in fact they have been elected, it would be; sacri- ficing the end to the means were the Senate to adhere to the mere form, and thus defeat the end which the forms were intended to secure. The persons in the two bodies claiming to be the senate and house of representatives who voted for Spencer constituted a quorum of both houses of the members actually elected ; the persons in the State-house legislature who voted for Sykes did not constitute a quorum of the two houses duly elected, but a quorum of persona certified to have been , elected to the two houses. Were the Senate to hold Sykes's election to be valid, it would follow that erroneous certificates, delivered to men conceded not to be elected, had en- abled persons who in fact ought not to vote for a Senator to elect a Senator to misrepre- sent the State for six years. On the other hand, if we treat the court-house legislature as the legal legislature of the State, it is conceded that we give effect to the will of the people as evidenced by the election. So that, to state the proposition in other words, we are called upon to choose between the form and the substance, the fiction and the fact; and, considering the importance of the election of a Senator, in the opinion of your com- mittee the Senate would not be justified in overriding the will of the people, as expressed at the ballot-box, out of deference to certificates issued erroneously to persons who wert not elected. In the opinion of your committee it is not competent for the Senate to inquire as to the right of individual members to sit in a legislature which is conceded to have a quo- rum in both houses of legally elected members. But undoubtedly the Senate must always inquire whether the body which pretended to elect a Senator was the legislature of the State or not; because a Senator can only be elected by the legislature of a State. In this case, Spencer having been seated by the Senate, and heiag prima fade entitled to hold the seat, the Senate cannot oust him without going into an inquiry in regard to the right of the individual persons who claim to constitute the quorum in these respective bodies at the court-house and at the State-house. We cannot oust Spencer from his seat without inquiring and determining that the eight or nine individuals who were elected were not entitled to sit/in the legislature of the State because they lacked the certifi- cates. But if the Senate can inquire into this question at all, it must certainly inquire for the fact rather than the evidence of the fact. It cannot be maintained that when the Senate has been compelled to enter upon such an examination it is estopped by mere prima facie evidence of the fact, and the certificate is conceded to be nothing more than prima facie evidence. But the Senate must go back of that to the fact itself, and deter- mine whether the persons claiming to hold seats were in fact elected. When we do this we come to the conceded fact that these persons lacking the certificate had in fact been elected, and that the persons who claimed to be the quorum of the two houses were in fact the persons who, in virtue of the election, were entitled to constitute the quorum of both houses. So that, in any view of the matter which your committee can take, we are of opinion that Mr. Sykes makes no case entitling him to the seat now occupied by Mr. Spencer, and your committee ask to be discharged from the further consideration of the memorial of Mr. Sykes. VIEWS OF THE MINORITY. In the case presented by the memorial of Francis W. Sykes, contesting the election of Hon. George E. Spencer as a Senator from the State of Alabama, the undersigned respect- fully submit the following minority report: By a law of the State of Alabama, the third Monday in November in each year is fixed as the day for the annual meeting of the general assembly of said State, and on the 18th day of November, A. D. 1872, being the third Monday of said month, two separate bodies of men, each claiming to be the legislature of Alabama, assembled at difierent places in the city of Montgomery and proceeded to organize as such legislature. One of these bodies, which met in the.capitol, or State-house, in said city, on the 10th day of December, 1872, elected the Hon. Francis W. Sykes a Senator in Congress from the said State for the constitutional term commencing on the 4th day of March, 1873- and on the 3d day of the same month the other body, which met at the United States court- rooms, also claiming to be the legislature of the State, elected the Hon. George K Spencer a Senator in Congress from said State for the said term. The two bodies subsequently became merged into one general assembly, under an ar- SYKES VS. SPENCER. 563 rangcment proposed by the Attorney- General of the United States. The organization of the lusiou legislature took place after the election of both Mr. Sykes and Mr. Spencer, and the right of neither the one nor the other depends upon the action of that legislature or anything connected with its history. Whatever claim either of the persons named may have to a seat in the Senate as a Sen- ator irom the btate of Alabama rests entirely upon the question whether the body that elected him at the time of such election was in fact the legislature of the State, and not upon anything that took place in the legislative history of the State subsequent to the time ot his election. It is admitted that there could be but one lawful general assembly m Alabama, and in order to determine whether Mr. Sykes or Mr Spencer is entitled to a seat in the benate, it is necessary to decide which of the two bodies, if either, claiming to have been the general assembly of the State, was in fact the legal legislature and com- petent to elect a Senator. If either of the bodies, known as the capitol legislature and the court-house legislature, assembled in accordance with the provisions of the constitu- tion and laws of Alabama, it cannot be doubted that such body so assembled in conformity with law was vested exclusively with the legislative power of the State, and was alone competent to elect a Senator to represent the State in Congress. On the other hand, it cannot be maintained, if either of said bodies assembled in violation of law or without authority of law, that such body so meeting, by whatever name it chose to style itself, was clothed with any legislative authority, or had any rightful claim to be regarded, for any purpose, as the general assembly. These propositions are self-evident, and cannot be questioned or denied: They are too clear to admit of argument, or to need illustration or enforcement. As isolated truths, unconnected with other questions, they would receive th(5 ready assent of not only every member of the Senate but of every man in the country at all familiar with the constitu- tion and laws of Alabama. The undersigned, therefore, deem it proper to refer to such provisions of the constitution and laws of the State of Alabama as bear upon the elec- tion of members of the senate and house of representative.s — and their organization as legislative bodies — composing the general assembly of the State. The following are some of the provisions of the constitution and laws of said State. Article "V, sections 2, 3, and ^,6, of the constitution: " "Sec. 2. The governor, lieutenant-governor, secretary of state, treasurer, and attorney- general shall hold their office for the term of two years, and the auditor for the term of four years. "Sec. 3. The returns of every election for the officers named in the preceding section shall be sealed up and transmitted to the seat of government by the returning officers, directed to the presiding officer of the senate, who, during the first week of the session, shall open and publish the same in the presence of a majority of the members of the general assembly ; the parson having the highest number of votes shall be declared duly elected ; but if two or more shall be highest and equal in votes lor the same office, one of . them shall be chosen by the joint vote of both houses. Contested elections for executive officers shall be determined by both houses of the general assembly, in such manner as shall I)e prescribed by law. "Sec. 16. The lieutenant-governor shall be president^f the senate, but shall vote only when the senate is equally divided, and in case of his absence or impeachment, or when he shall exercise the office of governor, the senate shall choose a president pro tem- pore. ' ' By section 6, ArtielelV of the constitution of Alabama, the president of the senate and •the speaker of the house of representatives remain in office until their successors are elected and qualified, as follows: "Sec. 6. The house of representatives, when assembled, shall choose a speaker and its other officers; and the senate shall choose a president, in the absence of the lieuten- ant-governor, and its other officers ; each house shall judge of the qualifications, elections, and returns of its own menjbers, but a conteste_d election shall be determined in such manner as shall be directed by law. The president of the senate and the speaker of the house of representatives Shall remain in office until their successors are elected and qualified." By Article VIII of the constitution of Alabama, the house of representatives is de- clared to consist of one hundred members, apportioned among, and elected from, the counties of the State as directed in said article. The senate consists of thirty-three members, elected by the voters from the senatorial districts, as directed in said article : and these two bodies constitute the general assembly of the State, and therein, by section 1 of Article IV of the constitution, is vested the legis- lative power of the State, as follows: "Sec. 1. The legislative power of this State shall be vested in a general assembly, which shall consist of a senate and house of representatives. " By act of the general assemby of Alabama, approved 31st December, 1868, entitled 564 SENATE .ELECTION CASES. " An act to fix the time of the annual session of the general assembly," the thiid Mon- day of November in each year is declared to be the day for the annual assembling of the general assembly. By section 38 of the revised code of Alabama, which was re-enjicted ai d continued in force by an act approved July 29, 1868, the general assembly is required to convene in the city of Montgomery, as follows: " The members of the general assembly shall convene in the city of Montgomery on the first day of November in each year, unless that day "be. Sunday, and if that day be Sunday, then on the next day afterward." This provision of the law was amended so as to require the general assembly to meet on the third Monday of November, as before stated. By the act of the general assembly of Alabama, approved 13th February, 1850, entitled " An act supplemental to an act making appropriations to establish the State-house at Montgomery," and by the original act approved 11th February, 1850, the State of Ala^ bama provided for the erection of the present capitol, or State-house, at Montgomery, and construction therein of a hall of the house of representatives and the senate chamber, ibr the use of the general assembly of this State, and from the time of the removal of the seat of government irom Tuscaloosa to Montgomery the two branches of the general assem- bly have been accustomed to use, for the purposes of their legislative sessions, the hall and chamber provided for them in the capitol now in use, and in that previously standing on the same site; and no iJther hall or chamber in Montgomery or elsewhere, except for a short period in 1849-'50, during a session of the legislature, when, in consequence of the destruction of the State-house by fire, the general assembly, by the concurrent action of the two houses, held their sessions in another building in Montgomery. By act of the general assembly of Alabama, approved October 8, 1868, entitled "An act to regulate elections in this State," it is provided (section 7) that the State senators shall be elected on the first Tuesday after the first Monday of November, 1872, and every four years thereafter; in section 6, that representatives in the general assembly shall be elected on the first Tuesday after the first Monday in November, 1870, and every two years thereafter. . This act further provides as follows: "Seo. 33. Be it further enacted, That one of the inspectors must number each ballot with the same number as the name of the voter on the poll-list, and the ballot must then, without being opened or examined, be deposited in the proper ballot-box. "Seo. 34. Beit further enacted, That there shall be no challenging of electors ap- pearing to vote at any election hereafter held in this State, and any registered voter appearing to vote at any election in this State shall be allowed to do so without question, challenge, or objection by any person; and any person who questions, challenges, or ob- jects, or who unlawfully hinders or delays any person offering to vote, shall be gnilty ot a misdemeanor, and, on conviction, shall be fined five Hundred dollars, and, on failure to pay the same, shall be imprisoned in the county jail for six months. "Sec. 35. Beit further enacted, That it shall be the duty of the inspectors of all elec- tions in the election precincts, immediately on the closing of the polls, to count out the votes that have been polled,Kind, after so doing, to promptly certify the poll-list, seal up the boxes containing the ballots and poll-list, and deliver them to the returning ofiScer, who shall deliver such sealed boxes to the judge of probate within forty-eight hours after they may be delivered to him, and take a receipt from the judge of probate for such sealed ballot-boxes. "Sec. 36. Be it further enacted. That judges of probate, sheriffs, and clerks of the ci^ cuit court, or any two of them, ofNthe several counties, are hereby constituted a board of supervisors of elections in and for their respective counties; and it shall be the duty of said board of supervisors to open, compare, and count the ballots cast at all elec- tions. , "Sec. 37. Be it further enacted. That it shall be the duty of the board of supervisors of elections, upon good and sufficent evidence that fraud had been perpetrated, or unlaw- ful or wrongful means resorted to to prevent electors from freely and fearlessly casting their ballots, to reject such illegal or fraudulent votes cast at any of such polling places, which rejection, so made as aforesaid, shall be final, unless appeal is taken within ten days to the probate court; and in case of a tie for any county officer, the board of super- visors shall decide. " Sec. 38. Be it further enacted, That it shall be the duty of the board of supervisors, within five days from the date-of receiving the sealed boxes and certificates of the num- ber of votes cast at each polling place from the inspectors, to make certificates, on blanks furnished by the secretary of state, of the exact number of votes cast in their county for each person, stating the office such person is voted for, and forward them, excepting for governor, lieutenant-governor, secretary of state, auditor, treasurer, and attorney-gen- eral, to the secretary of state, who shall, after such returns have been duly examined by SYKES VS. SPENCER. ■ 565 the sectetary of state, be filed as other public papers required to be kept in his office, and shall be subject to the inspection of any elector of this State. bEC. 39. Be tt further enacted, That the beard of supervisors shall forward a certified return ol election tor governor, lieutenant-governor, secretary of state, auditor, treasurer, and attorney-general to the presiding officer of the senate at least thirty days before the time fixed tor the meeting of the next general assembly. bEC. 40. Be tt further enacted, That it shall be the duty of the presiding officer of the senate, witmn tive days after the assembling of the general assembly, in the presence of a majority ot the members of the general assembly, to open the returns and proclaim the result ot such election, after which they shall be filed in the office ot. secretary of state, as required by section 37 of this act. "Sec. 41. Be it further enacted. That it shall be the duty of the secretary of state to , turnisb trom time to time the board of county supervisors with all necessary blanks upon which to make election returns. j r "Sec. 42. .^e it further enacted. That it shall be the duty of the secretary of state to tOTward certmcates of election to such persons as may be ascertained to be elected to any office in this State, addressed to the board of supervisors, at the court-house of the county in which such person returned as elected may reside, within ten days aft«r receiving such returns ot election from the supervising board of the county; and it shall be the duty of said board of supervisors to forward said election certificates to the persons entitled thereto." Applying these provisions of the constitution and laws of Alabama to the respective organizations known as the capitol and court-house legislatures, we are not left in doubt as to which of the two bodies was the lawful general assembly. The undersigned have no hesitation in declaring it as their opinion that the senate and house of representatives which met at the capitol and elected Mr. Sykes a Senator from the State Of Alabama were organized in strict compliance with the provisions of the con- stitution and laws of the State, and, thus organized, constituted the general assembly, and were vested exclusively with legislative power. To sustain the opinion, we need only to refer to facts which were admiljted before the committee or shown by record evi- dence to be true. In pursuance of the act of the general assembly of Alabama, approved October 8, 1868, hereinbefore referred to, an election for governor, lieutenant-governor, secretary of state, treasurer, attorney-general, and other State officers, and also for senators and representa- tives in the general assembly was held on the first Tuesday after the first Monday in November, 1872, in all the counties in the State. The returns of said election, certified as by law required, were made by the boards of supervisors of election to the secretary of state, and were by him filed in his office. Certificates of election were then issued by the secretary of state to the persons shown by said returns to have been elected to the general assembly, namely, to thirty-three senators and one hundred representatives. The duty of the secretary of state in this regard is prescribed by the forty-second section of the said act of October 8, 1868, as follows: "Sec. 42. Be it further enacted. That it shall be the duty of the secretary of state to forward certificates of election to such persons as maybe ascertained to be elected to any office in this State, addressed to the board of supervisors, at the court-house of the county in which such person returned as elected may reside, within ten days after receiving such returns of election from the supervising board of the county; and it shall be the duty of said board of supervisors to forward said election certificates to the persons entitled thereto." It is not denied that the election had been held in strict compliance with the provis- ions of law, or that the persons to whom certificates of election were issued had been voted for at said election for the offices to which they were respectively certified to have been elected. Nor will it be denied that the board of supervisors of elections in the sev- eral counties of the State had made returns as required by section 38 of the act aforesaid to the secretary of state, showing that the persons to whom certificates of election were subsequently issued had been elected to the State senate and house of representatives. Over these returns the secretary of state had no control other than their custody. He was required to receive them and file them in his office, and within ten days to issue cer- tificates to tte persons shown thereby to have been elected. His duty was purely minis- terial, and enforced by penalties prescribed by law. The suggestion has been made that the secretary of state, in issuing and causing to be delivered certificates of election to the members of the capitol legislature froiyi Barber County, acted in bad faith, but np evidence was ofliered to sustain such suggestion, and, in fact, the imputation was not pressed in argument before the committee. In the absence of any proof to the contrary, public officers must be presumed to act in good faith in the performance of official duty, and the undersigned know of no reason for denying to this officer the vindication arising from such presumption. He sought the ad- 566 SENATE ELECTION CASES. vice of eminent counsel of' both political bodies in reference to his duty in the matter, and acted in accordance with their written instructions in issuing the certificates referred to. The constitution of Alabama provides, Article IV, section 21, as follows: "The general assembly shall meet annually on such day as may be by law prescribed, and shall not remain in session longer than thirty days, except by vote of two-thirds of each house." The act of the general assembly of the State hereinbelbre referred to, approved Decem- ber 31, 1868, fixes the time ibr the annual meeting of the general assembly on the third Monday of November in each year. Before proceeding to recite the facts connected with the organization of the two houses of the capitol legislature, it may be proper to refer to the following provisions of the con- stitution of Alabama, showing, among other things, the part to be taken by the lieutenant- governor and the speaker of the last house of representatives in the organization of the two houses of the general assembly of the State, and also that a majority of each house shall constitute a quorum to do business, and that each house ' ' shall j udge of the quali- fications, elections, and returns of its members." Article IV, sections 6 and 7, are as follows: "Seo. 6. The house of representatives, when assembled, shall choose a speaker and its other officers; and the senate shall choose a president, in the absence of the lieutenant- governor, and its other officers; each house shall judge of the qualifications, elections, and returns of its own members, but a contested election shall be determined in such manner as shall be directed by law. The president of the senate and speaker of the house of representatives shall remain in office until their successors are elected and qualified. "Sec. 7. A majority of each house shall constitute a quorum to do business, but a smaller number may adjourn from day to day, and may compel the attendance of absent members in such manner and under such penalties as each house may provide." Article V, section 16, of the constitution also provides: "Sec. 16. The lieutenant-governor shall be president of the senate, butshall vote only when the senate is equally divided; and in case of his absence or impeachment, or when he shall exercise the office of governor, the senate shall choose a president pro tempore." Bearing in mind these provisions of the constitution and laws of the State in re > . i But the principle of res adjudicata can only apply wiere parties to the controversy have been before the court or body having jurisdiction thereof, and have been heard upon the merits of their-respective claims, and a decision has been rendered thereon. In the present^case Mr. Corbin has never been a party before the Senate to any contro- versy with Mr. Butler respecting his rights to a seat as Senator. The Senate, by its action, has not permitted him to be a partyto any such controversy, and the merits of his case have never been passed upon by the Senate. Therefore, the doctrine of m adjudicata has no application to the case. So holding, the committee have proceeded to inquire into the grounds of Mr. Corbin's claim to a seat m the United States Senate as Senator from the State of South Carolina. The grounds upon which his claim rests are as follows: A general election was held in that State November 7, 1876, for State and. county, ofttcers, and for members of the house of representatives of the State legislature, and for a part of the members of the State senate. The returns of this election were made, first, by the several boards of precinct man- agers^ach board consisting of threemembers— to the commissioners of election for their respective counties, called in this connection boards of "county canvassers" ; second, by the several boards of county -canvassers to the board of State canvassers at Columbia, the capital of the State;^ and, third, by the board of State canvassers who finally acted upon the returns and determined and declared the results. The bcTard of State canvassers on November 22, 1876, completed their canvass of this election and returned as duly elected sixteen (16) State senators and one hundred and sixteen (116) members.of the house of representatives. Subsequently, and previous to November 28, 1876, the day of the meeting of the legislature, the secretary of state delivered the official certificate of his election to each person declared elected by the board of State canvassers. On the 28th day of November, 1876, the newly elected senators, with those holding over from the former election, met and organized as the senate, in the senate chamber in the State-house. The legality of the senate as a legislative body and the regularity of its organization are not now and never have been questioned. On the same day fifty-nine (59) of the persons declared elected by the board of State canvassers met in the hall of the house of representatives in the State-house and organ- ized as the house of representatives, the other fifty-seven members, holding certificates of election from the board of State canvassers, refusing to meet with them. These fifty- seven members met in a private hall in the city of Columbia, and pretended to organize as a house of representatives by the election of "William H. Wallace as speaker. The fifty-nine members at the State-house elected E. W. M. Mackey speaker. yhe two bodies organized at the State-house recognized each other, respectively, as the senate and house of representatives of the State by the interchange of official communi- cations pertaining to legislative business. They also officially recognized Governor Chamberlain as the governor of the State, and were officially recognized by him as the senate and house of representatives, together constituting the legislature of the State. On November 29, 1876, five persons who contested the election of the persons declared elected by the board of State canvassers as representatives of Barnwell County were declared by this house of representatives at the State-house to be entitled to seats, and were admitted and sworn in as members. On December 2, 1876, five persons who in like manner contested the election of the persons declared elected by the board of State canvassers as representatives of Abbeville County were declared by this house to be entitled to seats, and were admitted and sworn in as members. v^ . On December 5, 1876, four other persons, contestants for seats from Aiken County, were in like manner admitted and sworn in as members. The members thus admitted, with the original membership of fifty-nine, make the whole number of members of this house of representatives (commonly known as the Mackey house)- seventy-three. On December 2, 1876, this house of representatives considered the matter ot tne elec- tion for members of the house of representatives in Edgefield and Laurens Counties, and declared that no valid election was held in those counties on the 7th of November, 1876 On the 12th day of December, 1876, being the second Tuesday after the said 28th day of November, 1876, the two bodies above described proceeded, in the manner prescribed by the statutes of the United States (U. S. Rev. Stat., Tit. 11, ch. l,p. 3), to elect aSenator in Congress. ,. m D. T. Corbin received a majority of all the votes ci^t in both bodies on. December Id, 1876. 590 SENATE ' ELECTION CASES, On the following day, December 13, 1876, the two bodies convened in joint assembly at 12 o'clock meridian; the journal of each house was read^ and it appearing that D. T. Corbin had received a majority of all the votes in each house, he'was declared duly elected Senator. Mr. Corbin's credentials were signed on December 13, 1876, by Governor Chamber- lain, who was, until December 14, 1876, the unquestioned governor of the State, General Hampton not claiming to hold the oface until after his inauguration on December 14, 1876. Upon this general statement of facts arises the question, was the election of Mr. Cor- bin valid, and is he now entitled to a seat in this body as a Senator from the State of South Carolina? I. It has already been stated that no question has ever been made as to the complete validity, as a legislative body and a constituent house of the general assembly, of the senate which sat in the State-house and co-operated with the house of representatives, in which Mr. Corbin received a majority of votes. No other body claimed to be the senate. This senate never in any manner recognized the existence, as a legislative body, of the other assemblage which assumed to be the house of representatives (commonly- known as the Wallace house), and which met in a private hall in Columbia. The action of this senate, therefore, so far as it enters into the title of Mr. Corbin, need not be further discussed. It was valid. The part performed by the house of representatives which sat in the State-house in the election of Mr. Corbin presents the most important question which arises in this case. The validity of this body is called in question. ' It is claimed, in denial of Mr. Corbin's title, that this body was never a valid legislative body under the constitution and laws of South Carolina; that it never had a quorum of lawfully elected members; that aU its acts were null and void. The facts upon which this question must be decided are these: The constitution of the State, Article II, section 4, provides as follows: "The house of representatives shall consist of one hundred and twenty-four members, to be apportioned among the several counties according to the number of inhabitants in each. ' ' Article II, section 14, is as follows: "Each house shall judge of the election returns and qualifications of its own mem- bers; and a majority of each house shall constitute a quorum to do business." At the election of November 7, 1876, one hundred and twenty-four persons were to be voted for as members of the house of representatives. Of this number, constituting a full house, the board of State canvassers declared that only one hundred and sixteen were duly elected, and the secretary of state issued certificates of election to only one hundred and sixteen, the canvassers at the same time placing upon the records a declaration qf their inability, by reason of unlawful influences and practices in the election, to deter- mine that any persons had been duly elected as representatives for the counties of Edge- field and Laurens. Of the one hundred and sixteen persons thus declared elected by the board of State canvassers, and holding certificates of election from the secretary of state, fifty-nine took part in the organization of the house of representatives in the State-house on November 28, 1876, being a majority of all the members declared elected by the board of State canvassers and holding certificates of election from the secretary of state. Was the body thus composed and organized the legal house of representatives of the State? Attention has been called to the fact that after the organization of the house of repre- sentatives which elected Mr. Corbin certain of those who took part in that organization withdrew and acted with another assemblage calling itself the house of representatives, thereby reducing the number of canvassing board members sitting in the Mackey house from fifty-nine to fifty- three, of whom only, forty-four voted for Mr. Corbin. There is no force in these suggestions, because the fact is that the number of members who acted with the Mackey house was never reduced below fifty-nine. It is true that a few of those who formed part of the original fifty-nine canvassing board merpbers^of the Mackey house left their seats in the State-house and joined the Wallace house; but before a single such person had left the Mackey house had, upon contests duly made, admitted other members in number more than equal to those who afterward left. If, therefore, the original house of fifty-nine members was a lawful house on the day of its organization, it was a lawful house at all times thereafter till its final adjourn- ment December 22, 1876. If it was a lawful house for any purpose it was a lawful house for th'i purpose of deciding contested elections of its own raeinbers and for admit- ting those w hom it might adjudge to be lawfully elected. ■ COKBIN VS. BUTLER. 591 on^^fortv'ih^v^t*^''^ °'it°^^*''® °"S'"'*1 fifty-nine who organized the MaCkey housft L^Qukv wLnl ,! °" ^^- ^°'^''^ ^"^ "1° significance. At the time of his election the manv fawfol T^^^^"' many canvassing board members voted for Mr. Corbin, but how ber 28 th/n t^«T '^ ^'"^^^ ^?' ^™- ^*' ^^^ house was lawfully organized on Novem- entitled to « n f,, ^f ^ admitted on the 29th, and subsequently, were lawful members, But to f bt I ^ ."f ^/^ ^^"^ I'°"''^« belonging to any members ' ThP nlJl^t^r''* °/ *^® ^^e^"*y o^ tl»« Mackey house. South Sto Inn 3''r?wZ'!'°"?,.^?'''^'^^g'^^'^^ t^e matter of a legislative quorum in membeTs ° i»d Tol 11^ l^?^ *^? ^°''^^ s^^" ™°«st of one hnndrtd and twenty-four biihiS " ^ ^ '^ majority of each house shall constitute a quorum to do nbr^^^^i^'mi^LT** condensed form, the inquiry here is, what is the meaning of the twptftv fnn^nf^ ^ -"^ ■^^\ house"? Does it mean a majority of one hundred and twenty-four or a majority of the members duly elected or qualified? views^uSTe^'ldoS""" ^°''^^ ^^"^ ^^^^ there are strong reasons why the latter .w^*^^ ^°™®'^ ''•f 7 ^^ adopted a contingency may easily occur in which it will be ^ 1^ t^ impossible to organize a lawful house. If under any circumstances there should be a failure to elect a majority of the whole pos.sible representation, the govern- ment would be brought at once to a dead stop; nor would there be any poWer anlwhere to remove the obstruction. In opposition to this view it is said that if it be held that a number less than a major- ity ot the whole possible representation constitute a quorum, then under some circum- stances It will be m the power of a small fraction of the whole representation to hold and exercise the powers of the house. This is admitted; but such a danger will not menace the life itself of the State. The government will be able to go on without recourse to extra legal remedies. All governments aim at self-perpetuation. No element of self-destruction is inten- tionally admitted into the framework or fundamental law of a State. All constitutional provisions should therefore receive a construction, if possible, which shall be in harmony with this idea of the perpetuity of the government, of ite unbroken life and efSciency. If the rule were adopted that a quorum of the house of representatives of South Caro- lina must consist of at least sixty-three members, then if from any cause sixty-three members should not be elected, it vyould be impossible by any constitutional methods to obtain a house of representatives at least until the next general election. No speaker could be chosen; no writs of election could be issued. Did the fifty-nine members composing the body at the State-house constitute a quorum of the house of representatives ? The most controlling decisions upon this question are those of the two Houses of Con- gress. The Constitution of the United States and the constitution of South Carolina may be said to contain identical provisions upon this point. The Constitution of the United States provides as follows: "The Senate of the United States shall be composed of two Senators from each State, cliosen by the legislature thereof for six years. — (Article I, section 3.) "The number of Eepresehtatives shall not exceed one for every thirty thousand, but each State shall have at least one Representative." — (Article I, section 2.) The only respect in which these provisions differ from the corresponding provisions of the constitution of South Carolina is that here the numerical aggregate of Senators and Representatives is not stated. The rule of representation is laid down, and under that rule there is always at any specified point of time a fixed number of Senators and Rep- resentatives in Congress, precisely as much so as in South Carolina. In principle these two constitutional provisions are identical, and it is idle to insist that the mere verbal difference is of the least importance. The provisions respecting a quorum in the Constitution of the United States and that of South Carolina are identical in terms, namely: "A majority of each house shall constitute a quorum to do business." It willbe found that in the Senate of the United States prior to 1862 it was held as a matter of parliaihentary practice in some instances that a quorum consisted of a majority of the whole possible representation, and in other instances of a majority of Senators elected and qualified. The question does not appear to have been discussed by the Senate, or to have been maturely considered, until after April 11, 1862. On that day Mr. Sherman, of Ohio, offered a resolution, which was referred to the Committee on the Judiciary, in these words: . - ^x,- "Eesolved, That a majority of the Senators duly elected and entitled to seats in thia body is a constitutional quorum." — (Congressional Globe, April 11, 1862.) 592 SENATE ELECTION CASES. - On July 9, 1862, this resolution was debated in the Senate and laid upon the table 1)y a vote of 19 to 18. On March 7, 18G4, Mr. Sherman offered a resolution, which was referred to the Com- mittee on the Judiciary, in these words: ''licsolved, That a quorum of the Senate consists of a majiority of the Senators duly chosen or qualified." On May 3, 1864, the Committee on the Judiciary having been discharged from the further corLsideration of the resolution, it was taken up and debated. On this and the following day the subject was elaborately discussed, especially by Senators Carlisle and Davis against the resolution, and by Senators Johnson and Sherman in its favor. The words "or qualified" having been struck out, the resolution wa.s adopted by a vote of 26 to 11, May 4, 1864, in these words: "Resolved, That a quorum of the Senate consists of a majority of the Senatorsduly chosen. "^(Congressional Globe, March 7, May 3 and 4, 1864.1 The precedents in the House of Representatives prior to 1861 had been varying, but here, as in the Senate, the subject does not appear to have been maturely considered until 1861. During the first session of the Thirty-seventh Congress, in the House of Eepre- sentativefs. Speaker Grow finally decided that a quorum of the House consisted of a ma- jority of the members chosen, and he was sustained by the House in this decision. — (Journal H. R., 1st sess. 37th Congress.) The effort has sometimes been made to disparage this precedent by stating that it was made under the stress of a necessity to secure an organization of the House. This is a mistake. The decision was made fifteen days after the organization of the House, and upon a question which did not involve the. question of the validity of the organization. The resolution adopted by the Senate in 1864 has since been adopted by the Senate as a permanent rule, and now appears in Rule 1. If, in opposition to these precedents, it is urged that they were made because of spe- cial circumstances then existing, or upon certain constitutional theories regarding the status of the States then in rebellion, the answer is that there is no doubt that the peril of ah opposite construction did lead tothefinal reversal of former precedents. And justly so. One of the truest canons of constitutional construction is thatwhich adopts thecon- struotion which best effectuates the purpose of the instrument or provision to be con- strued. A construction which leads directly to the practical paralysis of the legislative power of a State can never be admitted. ' Professor Farrar, in his Manual of the Constitution of theUnitedStates, page 166, says in relation to the constitutional provision respecting aquorum that "this has been held to be a majority of the members actually sworn in and entitled to seats at the time, and not a majority of a full delegation from all the States." Another precedent arose in the Senate of the United States on March 2, 1861, when a proposition to amend the Constitution was on its passage. The Constitution, upon this looint, provides that " Congress, whenever two- thirds of both Houses shall deem it neces- sary, shall propose amendments to this Constitution," &c. When the vote was taken in the Senate, March 2, 1861, Mr. Trumbull raised the point of order that this provision required two-thirds of all the Senators which all the States were entitled to elect. The Presiding OfBcer overruled the point of order, and upon ap- peal the ruling was sustained by a vote of 33 to 1. Another precedent of considerable force is found in connection with the ratification of the fifteenth amendment to the Constitution. The Constitution of Indiana provided that two-thjrds of each house should constitute a quorum. In 1867 certain members of the legislature resigned in order to defeat a vote upon the ratification of the amendment. The remaining members thereupon decided that two-thirds of the actual membership constituted a quorum, and proceeded to ratify the amendment. This action was certi- fied in forwarding the vote of the legislature on the ratification of the amendment. No question was raised by Congress in regard to the legality of the vote, and the vote of Indiana, as thus cast, was accepted and counted. The case of State vs. Huggins, 1 McCord, 139, decided in the court of appeals in South Carolina, is in point. Eighteen managers of election were appointed by the legislature for the district of Georgetown. Two had refused to qualify, one was dead, and one was disqualified, reducing the number to fourteen. It was held by the court that a majority of fourteen properly formed the board of managers for the district to determine the va- lidity of the election of a sheriff, a majority of those qualified to serve, and not a majior- ity of the whole number appointed, being a lawful quorum. Under the provision of the Constitution of the United States that ' ' each House shall be judge of the elections, returns, and qualifications of its own members," the Senate is the sole judge of this matter. The action, opinion, or decision of any other body is, therefore, entitled to such weight or respect only as may be due to the reasons whicli support it, CORBIN VS. BUTLEft. 593 «Hn*«^t'i?^tv ^ '^''^^f *^^, connection of the suprei^ie court of the State of South Car- otoa with this c^e. And it may be remarked that this presents the most remarkable IS^t^S'^ri^r/T'r"'' 'T'^'^f '^^^ controversy. Th^at court mayTsa^d w S injustice, to have taken part in the purely political contests of the State Instead of leaving such conteta to be settled by other departments of the govemment where they properly belong, the court engaged in those contests ^^yemmeni, wnere tney o J^t^fwo^i""^^* court was taken under these circumstances: After the Mackey house ^f^,fi?^yfl°^ house were each organized, the former with fifty-nine and the latter with fifty-seven members declared elected by the canvassing board, a petition was pre- sented to the supreme court by Mr. Wallace, as speaker df the WallaChouseTSg H.^v^r+rhf ^/''^^fl the ^secretary of state and the speaker of the Mackey hoSet^ dehver to him the returns of the election for governor and lieutenant-governor. ,..^^ht^J!; J»L ?f^°* the constitution of theState, these returns are required to be ?W^?1,«^^^ 'f.i^l^'^'^*"'? *° *^^ """"^'7 °^^^^^' ^^° is required to return them to the speaker of the house of representatives By the return of the secretary of state to the rule to show cause. Issued by the su- preme court upon the petition above stated, it appeared that that officej: had delivered the returns to the speaker of the Mackey house. The return of the speaker of the Mackey house showed that he had received the re- turns from the secretary of state, and held them by virtue of his office as speaker, and he denied the powerandjurisdiction of the court in the matter. The court thereupon reserved the question as to the secretary of state for further ar- gument, and dismissed the petition as to Speaker Mackey. In coming to this conclusion, the court said that "sixty-three members were in their seats when Mr. "Wallace was elected. * * * That the houseof representatives con- sisted of one hundred and twenty -four members, and sixty-three were necessary for a quorum to do business. * * * That all the members had certificates from the sec- retary of state except eight, and the qualification of these eight was established by the proceedings in this court. * * * That no matter what was the character of the cer- tificates they had, the return of the board of State canvassers to the court, showing that they had received the greatest number of vote3 in their particular counties, entitled them to access to the floor for the purpose of organization. ' ' In taking cognizance of this matter and rendering a decision therein the court plainly transgressed the limits of its judicial powers, and its decision is void and binding on no one. The constitution of the State, in section 26 of Article I, provides that "in the govern- ment of this Commonwealth the legislative, executive, and judicial powers of the govern- ment shall be forever separate and distinct from each other." That the due organization of the house of representatives is a legislative power or func- tion, and not a judicial one, seems too clear for argument. Two bodies were claiming each to be the lawful bouse of representatives. This was a purely political question. It was a question between two sections or parts of one legislative body, each claiming to rep- resent that body. No other questions were involved. Whether Mackey or Wallace was entitled to have the election returns vras a question which directly involved the action of the members of the legislative body, not in 'its effects upon citizens generally, but in relation to the due organization of that body under powers granted to it alone by the constitution. The interposition of the court was not only without authority, but was also absolutely unnecessary. There was ample power in the lawiiil house of representatives to afford the necessary remedy in the matter if any remedy was needed. Thejudgment of the court itself shows for another reason its want of jurisdiction over the case. It held that Mackey, not being an official person, could not be reached by mandamus and dismissed the petition. It could grant no relief, accomplish no resuit, and yet it proceeded to express an opinion. This was extrajudicial. The court must have recognized this dilemma at the outset, namely, if Mackey is .speaker he is the law- ful custodian of the returns; if he is not speaker he is not such au olficial person as can be reached by mandamus. Hence, in either event, no writ could have been issued, and nothing remained but to dismiss the petition. Under these circumstances, the expression of an opinion that Wallace was the speaker and that sixty-three members are necessary to form a quorum was utterly uncalled for, a mere empty obiter dictum. When, therefore, it is claimed that the supreme court of the State is empowered to construe the constitution, and hence to decide upon the question of a quorum, the answer is that this is true only when the court has a proper case before it requiring the decision of such a question. But further, it is to be noted that the court in giving this opinion assumed the fact, now denied, that one hundred and "twenty-four members of the house, instead of one hundred and sixteen, had been in fact chosen. S B C 38 594 SENATE ELECTION CASES. The supreme court gave no reason for the opinion that sixty-three memhers-were neces- sary to form a quorum. It was their unsupported opinion, a dictum in every sense, not expressed in the course of reasoning or discussion leading to a judgment, and wholly imsupported by argument. In Carroll d«. Lessee of Carroll, 16 How ., 28, Judge Curtis said : ' ' This court, and other courts organized under the common law, has never held itself bound by any part of an opinion which was not needful to the ascertainment of the right or title in question be- tween the parties. In Cohens m. Virginia, 6 Wheat., 399, this court was much pressed with some portion of its opinion in the case of Marbury vs. Madison. . And Mr. Chief- Justice Marshall said: 'It is a maxim not to be disregarded that general expressions in every opinion are to be taken in connection with the case in which those expressions are used. If they go beyond the case they may be respected, but ought not to control the judgment in a subsequent suit, when the very point is presented. The reason of this maxim is obvious. The question actually before the court is investigated with care, and considered in its full extent; other principles which may serve to illustrate it are con- sidered in their relation to the case decided, but their possible bearing on all other cases is seldom completely investigated. ' The cases of ex parte Christy; 3 How. , 292, and Jen- ness I's. Peck, 7 How., 612, are an illustration of the rule that any opinion given here or elsewhere cannot be relied on as a binding authority unless the case called for its expres- sion. Its weight of reason must depend on what it contains. ' ' The conclusion on this point is that the construction of that provision of the Consti- tution of the United States relative to a quorum given by both Houses of Congress is applicable to a like provision in the constitution of the State of South Carolina. It is a construction dictated by sound reason and public policy. And if it is a safe and sound construction of the Constitution of the United States it is equally a safe and ^pund construction of the constitution of the State of South Carolina. A quorum, therefore, of either house of the legislature of South Carolina must be held to be a majority of the members chosen. Legality of th« action of the hoard of State canvassers. There is another question lying back of those already discussed which must receive attention, viz: Was the action of the board of State canvassers in refusing to certify the election of members of the house for Edgefield and Laurens Counties legal? The fact has already been sta,ted that the board of State canvassers did not determine and declare any persons elected to the house of representatives for Edgefield and Laurens Counties. It may ^Iso be mentioned here that, in consequence of this action of the board of State canvassers, no person representing Edgefield or Laurens Counties took part in the organization of the Mackey house. The provisions of the statutes of South Caroljna defining the powers and duties of the canvassing boards which are important to the present question are as follows: ' ' Sec. 16. The board of county canvassers shall then proceed to count the votes of the county, and shall make such statements thereof as the nature of the election shall re- quire within ten days of the time of the first meeting as a board of county canvassers, and shall transmit to the board of State canvassers any protest and all papers relating to the election. ' ' Sbc. 24. The board of State canvassers shall, upon certified copies of the statements made by the board of county canvassers, proceed to make a statement of the whole num- ber of votes given at such election for the various officers, and for each of them voted for, distinguishing the several counties in which they were given. They shall certify such statements to be correct, and subscribe the same with their proper names. ' ' Sec. 25. They shall make and subscribe, on the proper statement, a certificate of their determination, and shall deliver the same to the secretary of state. "Sec. 26. Upon such statements they shall then proceed to determine and declare what persons have been by the greatest number of votes duly elected to such offices or either of them. They shall have power, and it is made their duty, to decide all cases under protest or contest that may arise, when the power to do so does not, by the con- stitution, reside in some other body. "Sec. 27. The board shall have power to adjourn from day to day for a term not ex- ceeding ten days. ' ' A large mass of evidence in the form of affidavits was laid before the board of State (•auvassers, tending to show irregularities and illegal influences affecting the election in the counties of Edgefield and Laurens, to such an extent as to render it impossible for the board to determine and declare who had been duly elected. A summary of that evi- dence appears in the " statement " of Mr. Corbin's case, and need not be repeated here. Under the provisions of the statutes which have now been presented, and upon the evidences affecting the election in Edgefield and Laurens Counties referred to, the board of State canvassers determined that they could make no statement or determination of the el'ection in those counties. COEBIN VS. BUTLEE. y96 ■ J'^* ^o^A of State canvassers was authorized to reach such a conclusion if, in their judgment, the facts presented to them warranted it. They were required "to proceed to determine and declare what persons have been by the greatest number of votes duly elected to such offices, or either of them. In the present instance they found themselves unable to determine and declare that any persons had been by the greatest number of votes duly elected as representatives for Edgefield and Laurens Counties, and they so declared. If, for purposes of argument, it were here admitted that it was the duty of the board to declare what persons appeared to be elected upon the face of the returns, still until they did so declare, or until the house of representatives itself had acted upon the question, the persons claiming to be elected as representatives for these counties could have no claim to take part in the organization or proceedings of the house of representa- tives. It has been claimed in argument that the action of the board of State canvassers was illegal because they undertook to decide a case under protest or contest, when the power to do so resided, by the constitution, in the house of representatives itself. The answer to this is that they did not undertake to decide any cases under protest or contest, or to decide at all upon the final right of any person to sit as representative for Edgefield or Laurens Counties. Their action nlay more properly be described as a reference of the •matter to that body which, by law, had a right to pass finally upon the question of the election, qualifications, and returns-of its own members. It is true that in many, and perhaps most of the States, the powers and duties of the returning or canvassing boards have been held to be merely ministerial, consisting in the aggregation of the several returns from the various voting precincts throughout the State. The questioii, however, whether the powers and duties of a particular canvassing board are merely ministerial or not will always depend upon the law under which they act; and it does not follow that because, as a general rule, the powers of canvassing boards are merely ministerial that they are so in any particular instance. Action of the supreme court of South Carolina. While the board of State canvassers were engaged in the canvassing of the elections proceedings were instituted in the supreme court of the State for the purpose of controll- ing their action. And it is proper, in order to meet objections, to consider the relations of those proceedings to the present question. Those proceedings consisted.of the petition of the Democratic candidates for the vari- ous State offices; first, for a writ of prohibition to restrain the State canvassers from doing anything except the ministerial acts of ascertaining from the returns and statements , forwarded by the boards of county canvassers for the respective counties the persons who have received the highest number of votes for the offices for which they were candidates, and declare the so^me and certify the statements to the secretary of state; second, for a writ of mandamus to compel the board to ascertain from the said returns and statements the persons who received the greatest number of votes for the offices for which they were candidates, and to declare the same and certify such declaration to the secretary of state, &c. Upon this petition a rule to show cause was granted by the court, to which a return was made by the board of State canvassers, setting forth the powers conferred on them by the statute; alleging that they were then proceeding to discharge their whole duty according to the constitution and laws of the State, &c. Thereupon the court made an order commanding the board to proceed to aggregate the statements forwarded to them by the boards of county canvassers, and ascertain the persons who have received the greatest number of votes for the offices for which they were candidates, respectively, at the general election, and to certify their action in the premises under this order of the court. .... The board accordingly made a return to the court under this order, giving the vari- ous aggregates of the votes for the various candidates as they appeared on the face of the county canvassers' return. The portion of this return relating to the counties of Edge- field and Laurens is as follows: . , , ^■-. ^, ^ -^ u "The board of State canvassers, respondents herein, hereby certify that it appears by the statements of the several boards of county canvassers laid before the board that the following named persons have received the number of votes set opposite their respective names for the several offices designated, namely: EDGEFIELT) COUNTY. SBKATOB, M-w.Gaxy - -- i::::"::!: ilm L. Cain .--- - ' jjqjb;. This county is allowed one senator. 596 SENATE ELECTIOK CASES. KEPKESESTATIVHS. W. S. Allen '6,250 J. C. Sheppard - :. 6,250 James Callison 6,245 T. E. Jennings . . 6,25t) H. A. Shaw 1 6,251 Paris Simpkins 3,123 ElishaB. Harris--- 3,118 David Graham 3,120 Archie Weldon 3,118 Augustus Sinipkins 3,119 Note. — This county is allowed five representatives. j LAURENS COUNTY. SBNATOB. E. S. Todd 2,898 J. Y. P. Owens 1,813 Note. — This county is allowed one senator. BBPEESBHTATIVES. J. B. Humbert 2,911 J. Washington Watts 2,909 D. Wade Anderson 2,908 A. T. B. Hunter 1,811 W. H. Eutherford 1,810 Harry McDaniel 1 1,809 Note. — ^This county is allowed three representatives. "The board. further certifies that 'this statement is made to the court in obedience to its order of November 17, 1876, but. is respectfully submitted that under the present proceedings in this court this board is not by law compelled to report any of its actions to the court.' * * * * , * * * " This board further shows to this court that allegations and evidences of fraud have been filed with this board as to the election held in Edgefield Co\inty by many of the managers of election in said county; but similar allegations have been made and filed as to one or more precincts in Barnwell County ; that the statements of the coramissioneis of election for Laurens County laid before this board were signed by two commissioners only, one of whom signed, as he certifies, under protest; said commissioner has also filed an affidavit that the reason he signed said statements was because he was in fear of bodily injury if he refused to do so; that various protests and notices of contest have been filed from many other counties of the State, alleging irregularities on the part of election o&- cers, illegal voting, &c. That in view of said allegations, protests, and notices of contests, none of which have been heard or passed upon by this board, because of the pendency of these proceedings, this board cannot, in their opinion, properly ascertain and certii'y who have actually re-_ ceived the greater number of legal votes in said counties for the several offices voted for unless they have the opportunity of investigating these allegations and hearing evidence upon these protests." This statement having been made to the court, the next day the court of its own motion made the following order: "It is ordered, That a writ of peremptory mandamus do issue, directed to the chairman and members of the board of State canvassers and the secretary of state, commanding the said board forthwith to declare duly elected to the offices of senators and membersof the house of representatives the persons who by said certificate of the said board to this , court have received the greatest number of votes therefor, and to forthwith deliver a cer- tified statement and declaration thereof to the secretary of state; and commanding the secretary of state to make the proper record thereof in his office, and without delay trans- mit a copy thereof, under the seal of his office, to each person thereby declared to be elected, a like copy to the governor, and cause a copy thereof to be printed in one or more public newspapers of this State." Before this latter order was served upon the members of the board, the ten days allowed by law having expired, the board completed its canvass of the election returns, declared the election, and adjourned sine die. The course of the supreme court in this case is deserving of notice in several respects. First. When the petition and the return were before the court there had been no refusal COEBIN VS. BUTLER. 597 by the board to do any duty imposed upon it. The board had only began their work as canvassers when the court issued its order in mandamus. It is an elementary principle of lawthata refusal to perform aduty must precede an application for mandamus. Eight of the ten days within which they could act still remained. Second. The court immediately issued an order requiring the board to report to the court itself the result of the face of the returns. This was an order for which no foundation had been laid in the proceedings. It was wholly irregular and without authority of law. Such an order could only have been granted, if at all, by way of a writ of certiorari, which had not been prayed for in this case. The object of this order cannot be mistaken. It was to secure for the court the infor- mation necessary to determine beforehand the order to be made in order to accomplish;! desired end. .Can any other purpose be suggested? The court is asked in the petition for a writ of mandamus to ojder the board to aggregate the returns and certify the re- sults. The court sayin reply, let the board show us firstwhatthe resultswill be. When those results were iiresented to the court then the order was made to declare those per- sons elected who, according to the said report made to the court, had received the high- est number of votes. Third. Aside from all these evidences of partisan purposes, the action of the supreme court was wholly without jurisdiction. Tbis is tme as to allthe ofi&cers voted for at that election, and particularly of members of the legislature. It was in fact a plain usurpa- tion of power, whereby the functions of the board of State caiivassers were usurped by the supreme court, and the board required by the court to declare a specified result dic- tated to it by the court. After the board had acted the- court could by quo warranto have reversed the action of the board in cases where such a writ would lie; but as to members of the legislature it was without jurisdiction at any time to entertain the case. The house of representa- tives, under the constitution, had^ sole jurisdiction of the matter. Such action on the part of the court is without precedent in South Carolina. It is believed to be without precedent in any State. The board had a right to reach a conclusion uninfluenced and uncontrolled by any power. If it acted wrongly or illegally, its action could by various means be reviewed and corrected. . . No power could rightfally compel any decision, and especially any particular decision, until the expiration of the ten days allowed for its action. The only subsequent action of the court in this case was the imprisonment of the hoard for contempt of the order which was not served on them -till after their adjourn- ment Sine rf/e. ,,. / ,-„ " ^. ■H1\ Gushing, in his Law and Practice of Legislative Assemblies (page 52, section 141), speakingof returning ofScers, says: / ^ • \ "It remains to be observed, in conclusion, that the proceedings ot these (returning) officers fromthe necessity of thecase, are, in the first instance, uncontrollable by any other authority whatever; so that if, on the one hand, notwithstanding an election has been effected the returning officers neglect or refuse to make the proper return, the party thereby injured is without remedy or orders until the assembly to which he is chosen has examined his case and adjudged him to be duly elected; and, on the other hand, il the returning officers make a return when no election has in lact taken place, or ot one who is not eligible, the person returned will not only be entitled, but it is his duty, to assume and discharge the functions of a member until his return and election be adjudged ^°After the final adjournment of the board of State canvassers, November 22, 1876, the order of the supreme court already recited was served upon them. • , „ , That the hoard then had no power to reassemble and ^^t upon the returns is clear. - (Cooley on Const. Lim.,622; Clark fs. Buchanan 2 Mmn. , 340; ^^,N- Y.,603] In Minnesota it has been held, in accordance with the principle just started, that if the board of canvlssers, after canvassing the votes, adjourn without day, their power in the 5?emises is at an end, and they canSot reassemble; neither can a court by ma^aamu^. rnmnPl them to reassemble, or give them any power m case ot their doing so.— (t^lark tTBuchtan, 2 Min^! 340. See^also Gooding vs. Wilson, 42d Congress; State.s. Daum- '^^The dL?^on of the supreme court of South Carolina was subsequently reviewed on habe^ corpus aud set asiSe by Hon. HughL. Bond, of the Ufed States «rcuitcourt Th7 State supreme court) proceeded to imprison the members of the board lor con- ** After their imprisonment a writ of habeas corpus was sued out before Judge Bond TTr^tP^ Stotes circuit judge, sitting at Columbia. Judge Bond delivered an elaborate Son^n wh'ch L held^tiiat the^proceedings in the supreme court of the State were ^f i,nn+ inrisdiction, and that its order was void. He says: . , ^i, .,„* .'The tof questiok to be decided at this time and upon this motion is whether or not 598 SENATE ELECTION CASES. the Buprem« cflnrt of the State of South Carolina had jurisdiction to hear and determine the matter before it." After quoting thfe sections of the constitution which confer upon the supreme court its jurisdiction, and the sections of the statute which define the powers of the board of canvassers, he continues: "The objection to the jurisdiction of the supreme court made by the petitioners is that they are a part of the executive department of the government charged with the execution of a law of the State, and that they alone are authorized to canvass the votes, and that they are not subject in the exercise of their functions to the control of the judicial branch of the government. "The Supreme Court of the United States in a very able opinion by Mr. Justice Mil- ler, in the case of Gaines vs. Thompson, 7 Wall., 347,'has very clearly determined what the law is on this subject, and that is, 'that if it appear ^that the act which the court is asked to compel the oflBcer of the executive department of the government to do be purely ministerial, the court having jurisdiction to issue the writ of mandamus may compel the executive ofB.cer to perform his duty; but if the act required to be done by the executive ofiScer be not merely ministerial but discretionary, or one about which he is to exercise his judgment, a court cannot by mandamus act directly upon the ofScer and guide and control his judgment or discretion in the matters committed to his care In the ordinary exercise of official duty. ' And the court further says that ' the inter- ference of the courts with the performance of the ordinary duties of the executive departments would be productive of nothing ' but mischief, and we are quite satisfied that such a power was never intended to be given them.' And for thisJMr. Justice Miller quotes the opinion of Chief- Justice Taney in the case of the Commissioner of Patents va. Whitely, 4 Wall., 522, and the law is stated to the same effect in a very cel- ebrated case in Maryland, by Chief-Justice Bowie, Miles vs. Bradford, 22 Md. Eep.j 170,"^ a case where the power of the governor to canvass the^votes was not so broadly given as in the case at bar. "That the duty of this board of canvassers was not merely ministerial, but that they were clothed with a large discretion, it seems to me is very plain. Theyjvere not merely to take the returns andaggregate them. They were to canvass them. That is, they were to examine, to sift, to scrutinize them, which implies a power to reject such as were not lawful in their judgment; and more, they were to receive all cases under protest or contest that might arise when the power to do so did not by the constitution reside in some other body. "They were the executive officers appointed to declare the election of such persons as had in their judgment the majority of th6 legal votes cast. If they decided erro- neously or falsely the remedy of those candidates who thought themselves wronged was by quo warranto : but no court had the jurisdiction to compel the board of State can- vassers to do otherwise than their own judgment dictated. "It remains now to be seen what the court was asked to do by the relators. Their suggestion sets forth ' that the board is proceeding to hear and determine all matters of protest and contest before them in regard to the election of persons who were candidates at the general election, and is proceeding to certify their determination in such contests and protests to the secretary of state.' And they pray that a writ of mandamus, may issue commanding them to ascertain from ' the managers' returns and statements for- , warded to them by the boards of county canvassers, the persons who at the general elec- tion on the said 7th day of November, ultimo, had the highest number of votes; and com- manding them and compelling them to revoke and annul any determination or decision which they may have made in any case of contest or protest, if any such there be.' "Under the cases cited in the opinion of the Supreme Court of the United States, Gaines to. Thompson, 7 Wall., 347, above referred to, I am of opinion that the supreme court of the State of South Carolina had no jurisdiction to entertain any such 'sug- gestion' or 'petition.' * * * The board of State canvassers is required to meet on the 10th day of November for the purpose of sifting, scrutinizing, not merely aggregat- ing, the Statements of the county boards. * * * "We have shown from the 'suggestion' itself that in our judgment the court had no jurisdiction to entertain it, and though the returns (to this writ) show that the parties are in custody solely for not obeying the mandate of the court respecting State oflScers, it is our duty to go behind the returns and look at the case as it presented itself to the supreme court at its inception. What the relators asked the court to do in their original suggestion is perfectly plain, and we have above quoted the paragraph of the ' suggestion ' which constituted the grotind of complaint of the relators. In my judgment the whole matter was beyond the jurisdiction of the supreme court, and any order passed by them upon such ' suggestion ' is void. * * * " t think this proceeding in the supreme court was beyond the jurisdiction of that courtj that the boaid of State canvassers were clothed under thelaw with discretionary COEBIN VS. BUTLER. 599 We concur m the conclusions reached by Judge Bond ««Partment. palTg^^S.^'^dlffi^r^ftwirrnflt'''^'''* *° '"^t '^*^''" °f ^^-^ WaUace house in a^Lfuren^Coun?^, pli +1^^ "^ *^® ^''"'"'^ ^^° «lai«ied to represent Edgefield ^mber 6 the creXnti;i« nfT ^ J*"^™?!"* ^^^^ Wallace house it app'ears that fn De- a.untL we^e reS r^^^^^^ "^^'""i"^ ^ ^^ «1^°*«^ f°' Edgefield and Laurens ^^rt as totheTr rS to hold s^ate '''' °" "^""'^^ ''"'^ ^'^'«'=*'°'" *° '°^'««*'g^te and ang^S^^^^^^ieatHn^^^^^^^^^^ -''--'^ ^^ ^ ^"^^^^^-^^^ ^tion, as wel as in the right of the persons claiming to be eleotedTo" EdaTfield 1^ Laurens Counti^ to take part in the proceedings of that body ^^dgefield and Mon seatTns the^*Edit7/ of December, when the Wall^e house adopted the reso- iution seating the Edgefield and Laurens members, that house conta,ined sixtv-thiee canvassing board members, and hence that the action of the house in sSng tSmem! tZ Z^e toirat.l*:St " '^ '1 f """''^ ^''' ^'^^^ ^^ °'-i- is a coSLn th^t ^fltT^^IZ f-fi f^ }T^ ""'^* ^""^^ "• majority of one hundred and twenty-four, holding the certificates ot the canvassing board If this be so, then the Wallace house on the day of its organization was clearly without a quorum to do business, for it had only fifty-seven members holding such cerfi&ai^ The SIX members who joined that house between November 29 and December 7 had aU been sworn m as members of the Mackey house, and had acted with that house in effecting its organization. If, now, the Mackey house was a valid house of representatives at its organization, the subsequent withdrawal of these six members to join another body could have no eflfect either to impair the validity of the Mackey house or to cure the invalidity of the Wal- lace house. If their absence had reduced the body below a quorum the house could do no business, but, in point of fact, their absence did not reduce the Mackey house below ~ a quorum. On the same day, December 7, the Wallace house also adopted resolutions declaring valid the election of the speaker and subordinate oflBcersof that house on the 28th of November. This action is another evidence that the Wallace house regarded its oi^anizatiou on " the 28th of November as at least of very doubtful validity. Organizaiiun of the house of representatives. Passing now from questions affecting the legality of the action of the board of can- vassers we come to questions concerning the mode of organizing *he Mackey house, and especially the exclusion therefrom of all persons not declared elected by the canvassing board. The legal and parliamentary principles on which fhe Mackey house was organized may be stated as follows: First. That no persons except those-declared elected and duly returned by the board of State canvassers and holding certificates of the secretary of state were entitled by law or usage to be placed upon the roll. — (Gushing, sections 229 and 240.) Second. That the organization of the house must be effected by those persons bnly whose election had thus been declared by the board of State canvassers and certified by the secretary of state in accordance with the law of the State. / Third. That all other persons claiming to be entitled to seats in the house of repre- sentatives must submit their claims to the house after its organization by the members whose seats were undisputed. — (Gushing, sections 229 and 240.) "It is to be observed in the outset that when a number of persons come together, each claiming to be a member of a legislative body, those persons who hold the usual credent tials of membership are alone entitled to participate in the organization." — (McGrary's Law of Elections, 377.) "It is apparent that the case of Sykes vs. Spencer is not in conflict with the rule that in the organization of legislative bodies persons holding the usual credentials are alone authorized to act. "—(McGrary's Law of Elections, 392.) In the well-known case of Kerr vs. Trego, 47 Pa. S. E. — , cited in Brightly's Leading Cases on Elections (page 632), Chief-Justice Lowrie, of the supreme court of Pennsyl- vania, laid down the following principle: - "Qa the division of a body that ought to be a unit the test of which represents the 600 SENATE ELECTION CASES. legitimate social succession is which of them has maintained th& regular forma of organ- ization according to the law and usages of the body, or, in the absence of these, accord- ing to the laws, customs, and usagesof similar bodies in like cases, or in analogy to them. This is the uniform rule in such cases." And in the same case, speaking of the custom of the clerk of the former organization taking charge of the organization of the new body, he says (page 638): "It bas the sanction of the common usage of every public body into which only a por- tion of new members is annually elected. It is the periodical form of reorganizing the select council and the senate of the State, and also the form of organizing the Senate of the United States on the meeting of a new Congress, when the Vice-President does not appeal' and the last President pro tempore does; and we understand this custom to be uni- form throughout the United States, though this is not very important.- And when there is a President whose term as a member has expired, then the functions of the clerks con- tinue, and they, in all cases, act as the organs of reorganizing the body, and continue to hold office until their successors are chosen and qualified. Our State and i^ederal H ouses of Representatives are illustration enough of this. So universal is this mode of organ-- izing all sorts of legislative and municipal bodies that all departures from it can be justified only as founded on special and peculiar usages or on positive legislation. When- ever this form is adhered to, a schism of the body becomes impossible, though the process of organization may be very tardy. " It is obj ected that a rule that attributes so much power to the officers of the previous year gives them an advantage whioh they may use arbitrarily and fraudulently against the new members, so as to secure to themselves an illegitimate majority. No doubt this may be so; but no law can guard against such frauds so as to entirely prevent them, just as it cannot entirely prevent; stealing and perjury and bribery; the people are liable to such frauds at every step in the processes of an election or organization. But so much more the need for order and law in this part of the process; the law cam dictate that, though it cannot furnish honesty and sound judgment to the actors in it. That the law and order that we have announced have existed so long and so generally is pr(iotj at least, that they are better than no law at all. " ' In.Wilson's Digest of Parliamentary Law, section 1603, page 221, this author says: ' 'At the commencment -of every regular session the Clerk of the House opens the ses- sion by calling the names of members by States and Territories, if in Congress, and by counties if in State legislative assemblies. If a quorum answer to their names, he will put the following question : ' Is it the pleasure of the House to proceed to the election of a Speaker ?' If decided in the affirmative, tellers are generally appointed to conduct the vote." This seems to be the universal custom in the organization of legislative bodies, and such custom not only prevails in South Carolina, but is specially established by the rules of the house of representatives of this State. Rule 80 of the rules of the house of representatives of this State is as follows: ' ' In all eases not determined by these rules, or by the laws, or by the constitution of this State, as ratified on the 14th, 15th, and 16th days of April, 1868, this house shall conform to the parliamentary law which governs the House of Eepresentativep of the United States Congress." Rule 81 is as follows: " These rules shall.be the rules •f the house of representatives of the present and suc- ceeding general assemblies until otherwise ordered." Turning now to Barclay's Digest (pages 44 et seg.,.and 126), we find that the law govern- ing the House of Representatives of the United States Congress requires the Clerk of the last House to make up the roll of the members of the new House by placing thereon the names of such persons only whose credentials show "that they were regularly elected"; that having ascertained, by a call of this roll, thatja quorum is present, the Clerk then proceeds to call the namesof the members for the choiceof a Speaker; the Speaker being chosen, assumes the duties of presiding officer, and, after swearing in the members, the oath of office being first administered to him, proceeds to complete the organization. Pending the election of a Speaker the Clerk preserves order and decorum. Upon the question of the right of the claimants from Edgefield and Laurens Counties to be placed upon the roll, and to participate in the organization, the following citation from Cushing's Law and Practice of Legislativb Assemblies, section 229, page 87, is in point: ' ' The right to assume the functions of a member, in the first instance, and to partici= pate in the preliminary proceedings and organization, depends wholly and exclusively upon the return or certificate of election ; those persons who have been declared elected and are duly returned being considered as members until their election is investigated and set aside, and those who are not so returned being excluded from exercising the fiinction - of members, even though duly elected, until their election is investigated and their right admitted." CORBIN VS. BUTLEE. 601 To the same effect is section 141 (page 52) of the same work, which has already been cited in connection with the action of the Supreme Court. " In section 238 (page 91) of the sameworlt, in discussing the principles of parliamentary law governing the assembly and organization of legislative bodies, Gushing says: "Hence it has occurred more than once that struggles for political power have begun among the members of our legislative assemblies, even before their organization; and it has happened on the one hand that persons whose rights of membership were In dispute, and who had not the legal and regular evidence of election, have taken upon themselves the functions of members; and, on the other, that persons having the legal evidence ol membership have been excluded from participating in the proceedings." - In order to avoid such difficulties, this distinguished writer lays down the following principles in section 240, which are applicable to the question now under consideration: "That no person who is not duly returned is a member, even though legally elected, until his election is established. "That those members who are duly returned, and they alone (the members whose rights are to be determined being excluded), constitute a judicial tribunal for the decis- ion of all questions of this nature." In Kerr vs. Trego (Brightly's Election Cases, ps^e 636), already cited, the Chief- Justice said: " In an bodies that are under law, the law is that where there has been an authorized' election for the office in controversy the certificate of election which is sanctioned bylaw or usage is a, prima facie written title to the office, and can be set aside only by a contest in the form prescribed by law. This is not now disputed. No doubt this gives great power to dishonest election officers; but we know no remedy for this but by the choice of honest men." It is proper here in this connection to again refer to the language already quoted from the^ same authority (page 638): " It is objected that a rule that attributes so much power to the officers of the previ- ous year gives them an advantage which they may use arbitrarily and fraudulently against the new members, so as to secure to themselves an illegitimate majority. No doubt this may be so; but no law can guard against such frauds so as to entirely prevent them, just as it cannot entirely prevent stealing and perjury and bribery; the people are liable to such frauds at every step in the process of an election or organisation. But so much the more need for order and law in this part of the processes; the law can dictate that, though it cannot furnish honesty and sound judgment to the actors in it. That the law and order which we have announced have existed so long and so generally is proof, at least, that they are better than.no law at all." i Applying the law as now stated to the facts in the present instance, it is clear, first, that there were no representatives from Edgefield and Laurens Counties having certifi- cates of election according to the law and usage of this State; and second, that under the law, without such certificates, the clerk had no right to place the names of any persons upon the roll of the house as representatives from these counties. It follows that fifty-nine members of the house of representatives who met in the State-house at Columbia a^d organized by the election of E. W. M. Mackey as speaker were lawfdlly convened, were lawfully organized, and, under the constitution of South Carolina, constituted the lawful house of representatives of that State. Though less than a majority of all the possible members of that body (one hundred and twenty-four) , there was a "quorum to do business," which consisted of a "majority of the members chosen"— a majority of all those holding lawful certificates of election. This house of representatives, in connection with the unquestioned senate, constituting together as they did, the legislature of the State of South Carolina, proceeded on the 12th„: day of December, 1876, to the election of a Senator to represent that State in the Senate of the United States for the term of six years to commence on the 4th of March, 1877. The election was duly held, duly determined and declared, and D. T. Corbirtwas duly and formally declared elected Senator, and subsequently he was duly commissioned as such by the governor of the State. He is, therefore, entitled, on the merits ot his case, to a seat in the Senate as a Senator from South Carolina for Ijhe term of six years com- mencing oil the 4th of March, A. D. 1877. M. 0. Butler's case. TTnder the view taken of the facts relative to Mr. Corbin's election and the legal effect thereof it would seem unnecessary to discuss the grounds of Mr. Butler's claim to be RpnS as it is impossible that he should have been legally elected if Mr. Corbm had nTrtadv'been elected. That the legislature cannot, after electing one person as Senator, or,iX.r.nentlv set aside this election and elect another person to the same seat has been decided by the Senate in the case of Potter m. Bobbins, from Ehode Island. But we 602 SENATE ELECTION CASES. think it is not improper in this connection to consider briefly the facts in his o«se, and upon which his title depends. The fifty-seven Democratic members of the house of representatives holding certifi- cates of election under the determination of the board of State canvassers on the 28th day ot November, 1876, declined to enter the State-house and unite with the other fifty-nine Republican members of the house of representatives thereassembled; but, by themselves, assembled in a private hall, called Carolina Hall, in the city of Columbia. Eight other persons, five from Edgefield County and three from Laurens County, claiming to be mem- bers of the house of representatives elect, but holding no certificates of election from . the board of State canvassers, assembled with said fifty-seven members at Carolina Hall. This body, so made up, organized by electing William H. Wallace speaker. In the organ- ization of this body it was assumed that the fifty-seven members with certificates of elec- tion and the eight persons claiming seats from Edgefield and Laurens, but who had no certificates of election, constituted a quorum of the house of representatives, and the same was competent to do business. On the 4th, 5th, and 6th of December, 1876, six members of the house of representa- tives assembled at the State-house, and who had been regularly sworn in as members of Ibat house and had taken part in its organization, retired therefrom, and joined the Wallace house at Carolina Hall. One of them subsequently returned to his seat in the body at the State-house. This body, at Carolina Hall, on the 12th day of December, 1876, this being the second Tuesday after the meeting and pretended organization thereof, proceeded to vote for a United States Senator, taking one ballot, which resulted in no choice. From day to day this house continued to vote for a United States Senator, but without making any choice, until the 19th of December, 1876, when, having then present eleven members of the senate (sis less than a majority of that body), the election resulted in the choice of M. C. Butler as Senator. The senate, as such, never recognized in any manner this assem- blage at Carolina Hall as the house of representatives; but always recognized the other • body assembled in the State-house as the lawful house of rej)resentatives. Was the election of Mr. Butlerunder these circumstances valid? It is impossible that it can be so regarded. There was no quorum, no majority of the members chosen at the then recent election, present. As already stated, one hundred and sixteen members of the house of represent- atives had been chosen at the recent election, and no more. Of this number fifty-nine were necessary for a "quorum to do business," and there were but fifty-seven here pres- ent. Such a body could not lawfully organize as a house of representatives, and all its pretended acts were void. Again, it is not possible to recognize this body as the legisla- ture of South Carolina, which under the United States Constitution alone could elect a Senator. The legislature of the State of South Carolina consists, under the constitution of that State, of a senate and house of representatives. A quorum of those two bodies must each meet and organize, and they must recognize each other before they can be considered the legislature of the State. Until this is done the legislature is not organized. ■ This body never had a senate recognizing and corresponding with it. Without such a body, even if itself lawful, it was nothing in law, and could do nothing as a legislative body. It did not, in fact, during its whole session do any legislative act or pretend that it could do any. It recognized its own impotency in this respect, but, strange inconsist- ency, it made a dash at the election of a United States Senator. The defects in Mr. Butler's title to a seat in the Senate as Senator from the State of South Carolina may be stated briefly as follows: 1 . There was no vacancy to be filled at the time of his election on December 19, 1876, rto Mr. Corbin had been lawfully elected to said ofSce on the 12th of December, 1876. - 2. The house of representatives that assumed to elect Mr. Butler had no quorum at the time it was organized, and was never, therefore, a lawful body. The additions made to it by recruits from the house of representatives assembled in the State-house did not make it a lawful body. If that house was a lawful body at its organization, it would so remain, notwithstanding the absence of five of its members. If, by their absence, it was reduced below a quorum^ no business could be done ex- cept to adjourn or send for the absent members. But that house was not in fact at any time reduced below a quorum. It remained intact from the day of its organization, November 28, 1876, till December 22, 1876, fol- lowing, when, in connection with the senate, it adjourned. 3. But admitting all that is claimed by Mr. Butler for the Wallace house at Car: olina Hall, that it was lawfully organized and had a quorum of the. house present, still, while this would invalidate Mr. Corbin's election, it would not make valid Mr. Butler's election. The single and isolated house of representatives of South Carolina cannot by COKBIN VS. BUTLEE. 603 ^y process of reasoning be held to constitute the legislature of that State. The consti- lS*'°w°f ^^^^ ^^^^ requires a senate and house of representatives for that purpose. But the Wallace house had no senate to recognize it. It stood isolated and alone, and, so 8ta,ndrng, it could originate no lawful action. It could no more els;.t a Senator than it could enact laws. The following resolution is submitted as the determination of the committee upon the merits of this controversy: Resolved, That David T. Corbin was, on the 12th day of December, A. D. 1876, duly elected by the legislature of the State of South Carolina a Senator from that State in the Congress of the United States for the term of six years commencing on the 4th day of March, A. D. 1877, and that, as such, he is entitled to have the oath of office adminis- tered to him. VIEWS OF THE MINOEIIY, The undersigned members of the Committee on Privileges and Elections, to which committee was referred the petition of David T. Corbin, praying the Senate ' ' to inquire into, hear, and determine on their merits the claim and right of the petitioner to a seat in tbe Senate from the State of South Carolina for the term of six years commencing on the 4th day of March, A. D. 1877," being unable to agree with the reasoning and con- clusion of the majority of the committee, respectfully submit the following as their views in the premises. On the 7th of March, 1877, the credentials of David T. Corbin and M. C. Butler, each claiming the seat as .Senator from South Carolina, were ordered to lie on the table and be referred to the Committee on Privileges and Elections when appointed. Two days thereafter the committee was appointed, and received the credentials of both claimants for the seat. Mr. Butler filed a printed statement setting forth the issues of fact and law upon which he claimed the seat. Mr. ■Corbin also filed a like statement setting forth the issues of fact and- law upon which he claimed the seat. Replies to the statements thus made were also filed. On examination of the issues thus made up there seemed to be no material issue of fact between the contestants, and the question as to which of them, or whether either, was duly elected by a legal legislature was one of law. In this condition the contest remained until the 20th of November, 1877, and on this latter day a motion was made in the Senate "that the Committee on Privileges and Elections be discharged from the consideration of the credentials of M. C. Butler, of South Carolina." The reason alleged for this motion was tbat the facts were all stated in the records furnished by the contestants; that neither of the contestants desired to take any testimony aliunde, and that the question of law could bo debated and decided itfthe Senate as well without as with a report from the committee. On the 27th of November, after elaborate debate, this resolution to discharge the com- mittee was accepted by the Senate, and after further debate, andafter the statements made and printed in behalf of Mr. Corbin and arguments on both sides had been read and madein the Senate, the Senate agreed to a motiton to swear in Mr. Butler, and he was, on the 30th of November, sworn in as the Senator from South Carolina for the term in contest. A vote admitting one contestant to a seat is certainly a vote denying the same seat to another contestant when both contestants are parties to the issue. No motion was made to reconsider this action of the Senate, and no reservation was made looking to any fur- ther contest between the claimants. On the 26th of March, 1878, and during a subse- quent session of Congress, the petition now under consideration by Mr. Corbin, asking the Senate "to inquire into, hear, and determine his right and claim" to the same seat in the Senate was referred to this committee. In considering this petition the facts which have been presented to this committee are precisely the same which were presented on the former consideration of this case. Not a new fact has been presented, nor offered to be presented, and not an old fact has been withdrawn or modified, nor offered to be withdrawn or modified. The arguments now made have been made from the same statements and briefs filed on the former hearing, and not a new question of law has been presented except the issue of res adjudicata. No charge of fraud has been made against the former decision. No allegation that testi- mony was before excluded which ought to have been admitted, or that testimony was admitted which ought to have Been excluded; no request by either party to produce testi- mouv has been denied, and no pretense that testimony then offered and excluded can now be produced. The jurisdiction is the same; the parties are the same; the subject- matter of contest is the same; the facts are the same, and the questions of law are the „e The petition now before us is a mere, sheer, naked proposition that the Senate at a subsequent session shall revote on the identical questions, facts, and issues on which th« Senate voted ajid decided at a fomer session. 604 SENATE ELECTION CASES. Without going into a tedious and unnecessary review of the authorities and cases to be found in the books, we deem it sufiS.cient to say that no demand like that contained in the petition of Mr. Corbin was ever granted by this Senate, nor, as we believe, by any legislative body. In the case of Bright and Fitch, in the Thirty-jafth Congress, the parties to the rehear- ing asked were new and different, and had not before been heard, and the rehearing itself was asked in a memorial from the legislature of the State of Indiana. Bat because " all the facts and questions of law involved were as fully known and presented to the Senate ' ' on the former hearing as they were then presented in the memorial of the legislature ask- ing a rehearing, it was held that the judgment first rendered by the Senate "was final, and precluded further inquiry into the subject." If, on the former hearing, Mr. Corbin had been denied the privilege of introducing material facts which he offered to produce;, if he presented material facts now which were then unknown ; if all the facts and questions of law now known and presented were not then as fully known and presented, the undersigned will not undertake to say his petition for a rehearing ought not in justice and right to be gravely heard and considered on the merits. But as Mr. Corbin himself has suggested no new facts or questions of law, and as we well know that all the facts and questions of law now known and pre- _ sented were then quite as well known and presented both to the committee and the ' Senate, we cannot regard his petition for another vote as entitled to further considera- tion. If, however, a maj ority of the Senate shall -differ with us in the view we have presented, and shall, without precedent, without law and without reason, determine to re-examine on its merits the title of Mr. Corbin to the seat which he claims in the Senate, we sub- mit that the former decision, excluding him from that seat, was right, and ought not to be reversed. There is no controversy between the contestants about the facts, and the only ques- tion presented is one of law. The only real question is, whether the house of repre- sentatives of the legislature which it is claimed elected Mr. Corbin was a legal house or a legal quorum of a house under the constitution and laws of South Carolina. By section 4, Article II, of the constitution, it is is provided that "the house of repre- sentatives shall consist of one hundred and twenty-four members. " By section 14, Article II, it is provided that "a, majority of eadi house shall consti- tute a quorum to do business; but a smaller number may adjourn from day to day, and may compel the attendance of absent members in such manner and under such penalties as may be provided by law. ' ' It is difiB.cult to see how language could more plainly define what should be a house, or what should be a quorum of a house, or what only a less number than a quorum had power to do. Nor is there anything in law, morals, or party exigency which can justify a resort to construction or sophistry to confuse such plain language. The number of members who assembled in what is called the Maokey house, which pretended to elect Corbin, was fifty-nine. Clearly this was neither a house nor the quorum of a house, as plainly defined by the constitution of the State, and this number had no power except to adjourn from day to day and compel the attendance of absent members. But this num- ber proceeded to organize as a legal quorum to do business. The pretext for this extraordinary assumption of power by iifty-nine members was that the board of State canvassers had only issued certificates of election to one hundred and sixteen members, and the claim is that fifty-nine is a majority of one hundred and sixteen. But this very statement admits that a quortim of the house was certified as elected. The fifty-nine, then, are left without excuse for failing to exercise their only power under the constitution, "to compel the attendance of absent members." But the facts show that the people in fact elected one hundred and twenty-four members — a full house. The precinct commissioners and the county commissioners of election, in all the counties, respectively, made out and forwarded the statements required by law showing the votes cast at the election. The board of State canvassers refused to cast up the votes in the counties of Edgefield and Laurens, under the shallow pretext that they were unable to determine whether the elections in those counties were legal. They refused to discha.rge their plain ministerial duty of casting up the votes and thereby ' ' determine and declare what persons had been by the greatest number of votes duly elected," but excused themselves from this duty by pretending they were not able to determine whether there had been legal elections in those counties ! This was a question which, under the cohstitution, each house alone had authority to determine, and which the board of State canvassers, by plain language of the act creating it, is forbidden to determine. In due time, also, the house of representatives -did determine that there had been elec- tions held in the counties of Edgefield and Laurens, and the returns very plainly showed who had been elected, and, in fact, the full house of one hundred and twenty-four mem- bers were elected. Both in fact and law, therefore, fifty- nine was not a quorum of the house to do business, and Mr. Corbin was not elected by a legal legislature. CORBIN VS. BUTLEE. 605 nf n ^•^^''** ™ *^'® "^^ ^'"'^ ^'^■■y plainly that the board of State canvassers were guilty non 1 *''*? '***^'°P* ""y "^^^^ trickery to defeat the result of the election by the people, and such conduct should not receive the countenauce of the Senate. >.^ iv,® unaersigned, therefore, recommend that the resolution to seat Mr. Corbin, reported by the majority of the committee, be not adopted. A. S. MEERIMON. ELI SAULSBURY. BENJ. H. HILL. Tuesday, February 25, 1879. On motion by Mr. Cameron, of "Wisconsin, that the Senate prdceed to the consideration ot the resolution reported by the Committee on Privileges and Elections declaring David ; o ""^r? „ °^y. elected and entitled to a seat in the Senate as a Senator from the State 01 bouth Carolina, it was determined in the negative— yeas 25, nays 36. On motion by Mr. Conkling, the yeas and nays being desired by one-fifth of the Sen- ators present, , Those who voted in the afiSrmative are Messrs. Allison, Anthony, Elaine, Booth, Cam- eron of Wisconsin, Chandler, Conkling, Dawes, Dorsey, Edmunds, Ferry, Hamlin, Hoar, How^, Ingalls, Kirkwood, McMillan, MitcheU, Morrill, Oglesby, Paddock, Plumb, Rollins, Wadleigh, and Windom. > s J> > . . Those who voted in the negative are Messrs. Bailey, Barnum, Bayard, Beck, Cameron of Peimsylvania, Cockrell, Coke, Oonover, Davis of Illinois, Davis of West Virginia, Den- nis, Eaton, Garland, Gordon, Grover, Harris, Hereford, Hill, Jones of Florida, Kernan, Lamar, McCreery, McDonald, McPherson, Matthews, Maxey, Merrimon, Morgan, Patter- son, Ransom, Saulsbury, Shields, Voorhees, Wallace, Whyte, and Withers. So the motion was not agreed to. Friday, February 28, 1879. The Vice-President laid before the Senate a letter of David T. Corbin, withdrawing his claim to a seat in the Senate as Senator-elect from the State of South Carolina. Ordered, That it lie on the table. [A copy of the letter is found on page 2028 of the Congressional Record, vol. viii, part 3.] EEIMBUESBMENT OP MK. BUTLEE'S EXPENSES. Friday, March 17, 1882. Mr. Hoar, from the Committee on Privileges and Elections, reported the foirowing resolution; which was read the first and second times by unanimous consent: ' '■Resolved, That there be paid out of the contingent fund of the Senate the sum of $3,500 to M. C. Butler, a Senator from the Stateof South Carolina, in reimbursement of ex- penses necessarily incurred by him in defense of his title to his seat." Monday, Ma^ch 20, 1882. On motion by Mr. Hoar, the Senate proceeded to consider, as in Committee of the Whole, the following resolution reported by him from the Committee on Privileges and Elections on the 17th instant, and no amendment being made it was reported to the Senate: "A resolution to pay M. C. Butler the expenses incurred by him in defending his title to a seat in the Senate. ' ' Order-ed, That it be engrossed and read a third time. The said resolution was read the third time. iJf«oZtied, That the Senate agree thereto. ._. [The debate is found on pages 2046, 2047 of the Congressional Record, vol. xiu, part 3. J EBIMBUESEMENT OF ME. COEBIN'S EXPENSES. "To nav D T Corbin late contestant for a seat in the United States Senate from the State of South Carolina, his expenses of such contest, $10, 000."- £7: S. Statutes at Large, 45th Cong., 1877-'79, vol. 20, page 400; surdry eivil appropriation bill, approved Marcn d, 1879. 606 SENATE ELECTION CASES. [Special session of Senate, March, 1877, and second session of the Forty-fifth Congress.] La FAYETTE GKOVEE, Senator from Oregon from March 8, 1877, till March 3, 1883. March 2, 1877, the credentials of Mr. Grover, elected for the term beginning March 4, 1877, were pre sented. March 7, a memorial of citizens of Oregon protesting against h a admission to. a seat were presented, and objection was made to the oaths being administered to Mr. Grover at thaf^time. The following 4ay he was admitted after debate. March 9, Mr. Grover submitted a resolution that tiie memorial be referred to the Committee on Privi eges and Elections for invcsligatiou. The resolu- tioli was agreed to. December 1-j, 3877. the testimony taken was printed. June 15. 1878, the commit- tee reported tjiat the evidence taken did not sustain any of the charges. The committee. asked to be discharged from the further consideration of the subject. One member of the committee, con- .eurring in the conclusion of t he committee, submitted views more at length, maintaining that a great injustice was done to Mr. Grover by the consideration given in the Senate to the vague charges pre- ferred against him. The history of the case here given consists of a transcript of the proceedings of the Senate relating to itlrom Senate Journals, 2d se^s. 44th and 45th Congs., and the report of the committee (except the testimony) from Senate Reports, 45th Cong., 2d sess.. No. 540. Specialreferences to the debates of each day are inserted below. ^ Friday, March 2, 1877. Mr. Kelly presented the credentials of La Fayette Grover, elected a Senator by the legislature of Oregon for the term of six years commencing March 4, 1877; which were read. Wednesday, March 7, 1877. Mr. Wallace moved that the oaths required by law be now administered to Mr. La Fayette Grover, whose credentials were heretofore presented as a Senator from the State of Oregon, and who appeared ixt the bar of the Senate. Mr. Hamlin objected to the oath being now administered to Mr. Grover, for thereason that Mr. Mitchell, a Senator from Oregon, now absent from the Chamber, had received and desired to present to the Senate a memorial of citizens of Oregon remonstrating against the admission of the said Gjrover to a seat in the Senate. Pending further debate upon the amendment of Mr. Bayard to the resolution of Mr. Blaine, Mr. Mitchell asbed, and by unanimous consent obtained, leave to present at this time a memorial of citizens of Oregon protesting against the admission of L. F. Grover to a seat in the Senate as a Senator from that State until certain charges therein made can be in- vestigated and disproved. Ordered, That the memorial lie on the table. [A statement by Mr. Mitchell and a copy of the memorial are found on pages 22, 23 of the Congressional Eec6rd, vol. "vi.] Thursday, March 8, 1877. Mr. Wallace submitted the following resolution far consideration: ' ' Whereas, under the Constitution and the laws and the practice of the Senate, La Fay- ette Grover, claiming to be a Senator irom the State of Oregon- — his credentials being regular and in due form and there being no contestant for the seat — and there being in said State but one body claiming to be the legislature, and but one person claiming to be the governor, and there being no doubt or dispute as to the existence of one legal, right- ful State government, is entitled to admission to a seat in this body, on the prima facie case presented by such credentials, notwithstanding the objections contained in the pe- tition of citizens of the State of Oregon against his^admission: Therefore, ___ "Besolmd, That the credentials of La Fayette (grover be taken Irom the table and the oaths of office be now administered to him. "liesolved, further, That the petition of citizens of Oregon containing charges against La Fayette Grover lie on the table until the Committee on Privileges and Elections is organized, when they shall be referred to such committee, together with his credentials, with instructions to investigate such charges and report to the Senate as to their truth or falsity." On the question to agree thereto, After debate, Mr. Whyte demanded a division of the question, and the question , being first put on ngreeing to the first resolution and preamble, It was determined in the affirmative. LA PAYETTE GEOVEE. 607 The question recurring on the second resolution, Mr. Wallace, with the consent of the Senate, withdrew the same. Whereupon Mr. Grover presented himself at the bar of the Senate, and the Vice-President having ™?^^^ V .**^ ^i" *^® °^*^^ prescribed by law, he took his seat in the Senate. [The debate is found on pages 31-39 of the Congressional Eecord, vol. vi.] Feiday, March 9, 1877. Mr. Grover submitted the following resolution: which was considered by unanimous consent, and agreed to, viz: ' " Resolved, That the thirteen memorials heretofore presented to the Senate by Hon. J. • H. MitcheU, purporting to be signed by 369 citizens of the State of Oregon, reciting that It was currently, reported and generally believed that the election of L. F. Grover as a Senator of the United States was procured by bribery, corruption, and other unlawful means in the legislature of the State of Oregon, and that the said L. F. Grover did cor- ruptly and haudently issue a certificate of election to one E. A. Cronin as a Presidential elector, on December 6, 1876, and that the said L. F. Grover did bear false witness be- fore the Senate Committee on Privileges and Elections, on or about January 6, 1877, be now referred to the Committee on Privileges and Elections, who shall thoroughly inves- tigate and report upon the foregoing charges, with power to send for persons and papers." Wednesday, March 14, 1877. Mr. Mitchell submitted the following resolution for consideration: '^Bemlved, That the Committee on Privileges and Elections be authorized to designate a subcommittee of three of its members who shall have authority to sit in the vacation for the purpose of taking testimony and making report to full committee at commence- ment of next session in pursuance of the resolution of the Senate authorizing an investi- gation into certain charges preferred against La Fayette Grover, Senator from Oregon; and such subcommittee shall have all the powers to send for persons and papers and administer oaths that the full committee now has." TauESDAY, Ufarch 15, 1877. Mr. Mitchell presented twenty-three petitions of citizens of Oregon, praying that L. F. Grover may be denied a seat in the Senate until certain charges preferred against him may be investigated; which were referred to the Committee on Privileges and Elections. The Senate proceeded to consider the resolution yesterday submitted by Mr. Mitch- ell to authorize tne Committee on Privileges and Elections to appoint a subcommittee to sit duringthe recess for the investigation of certain charges against La Fayet\;e Grover, a Senator from the State of Oregon; and Pending debate, it was Ordered, That the further consideration thereof be postponed to to-morrow._ [The latter proceeding is taken from the Eecord. It does not appear in the Journal. The debate is found on page 42 of the Congressional Eecord, vol. vi.] Feiday, March 16, 1877. The Senate resumed, &o., and an amendment having been proposed by Mr. Saulsbury, Pending debate. On motion by Mr. Allison, the Senate proceeded to the consideration of executive business. [The debate is found on page 43 of the Congressional Eecord, vol. vi.] Satueday, March 17, 1877. The Senate' resumed the consideration of the resolution submitted by Mr. Mitchell on the 14th instant, to authorize the Committee on Privileges and Elections to appoint a subcommittee to sit during the recess for the investigation of the charges against La Fay- ette Grover, a Senator from the State of Oregon; and The question being on the amendment proposed by Mr. Saulsbury, viz: Strike out aU after the word "resolved" and in lieu thereof insert: " That the Committee on Privileges and Elections, to which was referred a resolution of the Senate relating to the election of La Fayette' Grover as Senatbr from the Sta,te of Ore<^on, be, and the said committee is, instructed to appoint the j udge of the fpurth judi- ciardistrict of said State a commissioner to take testimony relating to the matters rfe- ferred to in said resolution, and th6>§aid commissioner' so appointed shall have power and authority, and it shall be his duty, to issue subpoenas for witnesses as well on behalf of the said La Fayette Grover as against him, and to give due notice of the time and 608 SENATE ELECTION CASES. place when and where the testimony will be taken. The testipaony so taken shall be tbrwarded to the said committee, which shall report the same, with their conclusions thereon, at the next regular session of the Senate," On motion by Mr. Mitchell to amend the amendment by striking out all after the word "instructed" and in lieu thereof inserting: "To appoint from its members a subcommittee of three, who shall take testimony re^ lating to the matters referred to in said resolution and report -to the full committee on the first Monday in December next; and for such purpose said subcommittee shall have power to sit in vacation; and if they deem expedient, go to the State of Oregon; and such committee shall have power to employ a clerk, stenographer, and sergeantat-arms, £^nd shall have all the powers of the general committee to administer oaths and send for persons and papers; and the expenses of such subcommittee, not exceeding $10,000, shall be paid out of the contingent fund of the Senate, upon vouchers to be approved by the chairman of such subcommittee," After debate, It was determined in the affirmative. On motion by Mr. Davis, of West Virginia, to amend the amendment as amended by striking out the work "clerk," it was determined in the negative — yeas 10, nays 34. On motion by Mr. Davis, of West Virginia, the yeas and naya being desired by one- fifth of the Senators present. Those who voted in the affirmative are Messrs. Beck, Davis of West Virginia, Dennis, Harris, Hereford, Hill, McCreery, McPherson, Wallace, and Whyte. Those who voted in the negative are Messrs. AUison, Anthony, Bayard, Blaine, Bogy, Chaffee, Christianoy, Conkling, Davis of Illinois, Dorsey, Eaton, Garland, Hamlin, In- galls, Johnston, Jones of Nevada, McMillan, Maxey, Mitchell, Morrill, Morton, Oglesby, Paddock, Patterson, Plumb, Randolph, Rollins, Sargent, Saulsbury, Satinders, Spencer, Teller, Wadleigh, and Windom. So the amendment tQ the amendment was not agreed to. On motion by Mr. Saulsbury to further amend the amendment by adding thereto the following: "And that the said L. P. Grover shall be notified of the sessions of the said subcom- mittee, with the right to be present at the examination of witnesses, " It was determined in the affirmative. The amendment of Mr. Saulsbury, as amended, was then agreed to; and,-. On the question to agree to the resolution ^s amended, as follows: "Resolved, That the Committee on Privileges and Elections, to which was referred a resolution of the Senate relating to the election of La Payette Grover as Senator from the State of Oregon, be, and the said committee is, instructed to appoint from its members a subcommittee of three, who shall take testimony relating to the matters referred to in said resolution, and report to the full committee on the first Monday in December next; and for such purpose such subcommittee shall have power to sit in vacation, and, if they deem expedient, go to the State of Oregon; and such subcommittee shall have power to employ a clerk, stenographer, and sergeant-at-arms, and shall have all the power of the general committee to administer oaths and send for persons and papers; and the expenses of such subcommittee, not exceeding $10,000, shall be paid out of the contingent fund of the Senate upon vouchers to be approved by the chairman of such subcommitte; and that the said L. P. Grover shall be notified of the sessions of the said subcommittee, with the right to be present at the examination of witnesses, ' ' It was determined in the af&rmative — ^yeas 39, nays 8. On motion by Mr. Whyte, the yeas and nays being desired by one-fifth of the Senators present, Those who voted in th^ afiSrmative are Messrs. Allison, Anthony, Bayard, Blaine, Bogy, Booth, Bruce, Chaffee, jChristiancy, Coke, Conkling, Davis of Illinois, Dorsey, Eaton, Garland, Hamlin, Hoar, Howe, Johnston, Jones of Nevada, McMillan, McPherson, Maxey, Mitchell, Morgan, Morrill, Morton, Oglesby, Paddock, Patterson, Randolph, Rollins, Sargent, Saunders, Spencer, Teller, Wadleigh, Windom, and Withers. Those who voted in the negative are Messrs. Cockrell, Davis of West Virginia, Harris, Hereford, McCreery, Merrimon, Wallace, and Whyte. So the resolution was agreed to. [The debate is found on pages 43-46 of the Congressional Record, vol. vi.] Friday, December 14, 1877.' On motion by Mr. McMillan, Ordered, That the testimony taken before the subcommittee of the Committee on Priv- ileges and Elections, designated to investigate certain charges against La Fayette Grover, a Senator from the State of Oregon, be printed. LA FAYETTE GROVER. 609 Saturday, June 15, 1878. Mr. Wadleigh, from the Committee on Privileges and Elections, who were instructed by the resolution of the Senate of March 9, 1877, to investigate certain matters touching the election of La Payette Grover as a Senator from the State of Oregon, submitted a report (No. 540), with a recommendation that the committee be discharged froni the further consideration of the resolution, and that any member of said committee have leave to present to the Senate, at the present or the next session, his views in writing upon said testimony; and Leave was granted as requested. * * * * » * * , Mr. Saulsbury, from the Committee on Privileges and Elections, submitted his views on the question of the election of La Fayette Grover as a Senator irom the State of Ore- gon, to accompany the report of the committee (No. 540) this day made. BEPOET OF COMMITTEE. [The committee consisted of Messrs. Wadleigh (chairman), Mitchell, Cameron of "Wis- consin, McMillan, Hoar, Ingalls, Saulsbury, Merrimon, and Hill.] In the Senate of the United States. June 15, 1878.— Ordered to be printed. Mr. Wadleigh, from the Committee on Privileges and Elections, submitted the fol- lowing report: The Committee on Privileges and Elections, to whom was referred the resolution of the Senate authorizing said committee to investigate and report upon charges that the election of La Fayette Grover as a Senator from the State of Oregon was procured by bribery, corruption, and other unlawful means, report that in their opinion the evidence taken does not sustain any of said charges against him. Your committee therefore ask to be discharged from the farther consideration of said resolution, and that any members of said committee have leave to present to the Senate at the present session or the next session their views in writing upon said testimony. VIEWS OF MK. SAULSBUEY. Mr. Saulsbury, a member of the subcommittee on Pri^dleges and Elections, appointed to take testimony in reference to the election of the Hon. L. F. Grover as Senator, con- curring in the foregoing conclusion of the committee, submits more at length his own views. At the special session of the Senate in March, 1877, the following resolution, offered by Senator Grover, was adopted, referring to the Committee on Privileges and Elections certain memorials which had been presented to the Senate, and requiring said commit- tee to investigate the allegations therein contained. The resolution is in the following words: "Resolved, That the thirteen memorials heretofore presented to the Senate by Hon. J. H. Mitchell, purporting to be signed by 369 citizens of the State of Oregon, reciting that it was currently reported and generally believed that the election of L. P. Grover as a Senator of the United States was procured by bribery, corruption, and other un- lawful means in the legislature of the State of Oregon, and that the said L. F. Grover did corruptly and fraudulently issue a certificate of election to one E. A. Cronin as a Presidential elector on December 6, 1876, and that the said L. P. Grover difl bear false vritness before the Senate Committee on Privileges and Elections on or about January 6, 1877, be now referred to the Committee on Privileges and Elections, who shall thor- oughly investigate and report upon the foregoing charges, with power to send for persons and papers." The following is a copy of the memorials referred to in the foregomg resolution: To the Senate of the United States : Whereas it is currently reported and generally believed that L. P. Grover by bribery, the corrupt use of money, and other unlawful and dishonorable means procured his election to the Senate of the United States by the legislature of the State of Oregon at its last session; and ^-.^ ;, ^-u at ^ Whereas the said L. F. Grover, in obedience to a corrupt scheme to defraud the btate of Oreeon of its proper electoral vote, as the governor thereof did unlawfully, dishon- <>stlv corruptly, and by acts of usurpation, declare elected to the office of Presiden- tol elector for the State of Oregon, on the 6th day of December, 1876, and did issue a S j3 o 39 610 SENATE ELECTION CASES. certilicate of election to one E. A. Croniu, who had been defeated by the people for said office by more than 1,000 majority; and Whereas the said L. F. Grover did fraudulently undertake to sustain his said act by falsely testifying as a witness concerning the same bel'ore the Senate Committee on Privileges and Elections on or about the 6th day of January, 1877: Now, therefore, we, the undersigned, citizens of the State of Oregon, earnestly but respectfully ask that the said L. F. Grover be denied a seat in the United States Senate a8 a Senator from the State of Oregon tmtil the foregoing charges are thoroughly investi- gated and disproved. M. L. WILMOT and others. Subsequently during the same session a resolution was adopted by the Senate instruct- ing the Committee on Privileges and Elections to appoint a subcommittee from its mem- bers to take testimony relating to the matters referred to in the said memorials and report the testimony taken to the full committee on the first Monday of the present session. The following is the resolution last referred to: ' ' That the Committee on Privileges and Elections, to which was referred a resolution of the Senate relating to the election of La Fayette Grover as Senator from the State of Oregon, be, and the said committee is, instructed to appoint from its members a subcom- mittee of three, who shall take testimony relating to the matters referred to in said resolution and report to the full committee on the first Monday in December next; and for such purpose such subcommittee shall have power to sit in vacation and if they deem expedient go to the State of Oregon; and such subcommittee shall have power to employ a clerk, stenographer, and sergeant-at-arms, and shall have all the powers of the general committee to administer oaths and send for persons and papers ; and the expenses of such subcommittee, not exceeding |10,000, shall be paid out of the contingent fund of the Senate upon vouchers to be presented by the Chairman of such committee. ' ' In obedience to said resolution a subcommittee consisting of the late Senator Morton, Senator McMillan, and the undersigned, was appointed, who proceeded to Portland, in (he State of Oregon, and examined a large number of witnesses, whose testimony has already been printed by order of the Senate. The undersigned, as a member of the subcommittee charged with the duty of making the investigations required by the first mentioned resolution, begs leave respectfully to .submit his own conclusions from the evidence taken. An examination of the testimony will show that the widest latitude was given to the investigation by the subcommittee. Witnesses were not restricted to matters within their own knowledge, but were allowed to testify as to their beliefs and suspicions, un- supported by any facts, and to narrate hearsay evidence of no higher character than the fugitive rumors which are not unfrequently current on the streets of a State capital preceding the election of a United States Senator. It may be at times impossible for a legislative committee to apply to an investigation with which it is charged the rules which govern the admissibility of evidence in courts of justice, but the undersigned must be allowed to express his conviction that in an in- vestigation into the truth of allegations affecting the personal honor of a member of the Senate, as well as his right to a seat in the body, no such wide departure should be al- lowed in the admission of testimony as the evidence in this case will show was permitted. While Senator Grover can have no cause to regret the latitude that was given to the inquiry into matters alleged against him or the regularity of his election, by reason of anything elicited against him or those to whom he owes his election to the Senate, it ought not to be allowed to become a precedent to govern similar investigations in the future. ' The undersigned objected at the very commencement of the investigation to the lati- tude in the examination of witnesses which is usually allowed in investigations by leg- islative committees, and insisted on an observance, as far as possible, of the rules which obtain in courts of justice in that regard. Had his suggestion been adopted in practice, the testimony in this case would have been compressed into a very narrow compass, and would have excluded a large mass of irrelevant testimony taken by the subcommittee. The undersigned begs leave to refer to the objections which he made on this point, tbund at pages 9, 10, and 11 of the printed testimony. Without reviewing in detail the testimony taken by the subcommittee, the undersigned has no hesitation in saying that, so far from justifying the insinuations contained in the memorials presented to the Senate .and referred to the Committee on Privileges and Elec- tions, it completely vindicates Senator Grover from the aspersions attempted to be cast upon him, and establishes beyond question the regularity and fairness of his election as a Senator. The testimony shows that the two houses of the Oregon legislature voted separately for Senator on the day fixed by the act of Congress, and met in joint convention and voted LA FAYETTE GROVEE. 611 for Senator daily thereafter until Senator Grover received the votes of a majority of all the members of the legislature. In the vote taken in the two houses separately, and in every vote in the joint convention, he received a larger number of votes than any other candidate. The testimony will further show that Senator Grover, in the final caucus of the Dem- ocratic members of the legislature, received the caucus nomination, and was thereafter the only recognized candidate of his party for the position, and as such received ulti- mately the vote of every democratic meinber of the legislature. The testimony further shows that during the contest for Senator Governor' Grover repeatedly assured his personal and political friends that he did not desire and would not have an election that was not honorable to himself and his party, and offered to with- draw from the contest if the Democratic members could agree upon any other candidate. In the opinion of the undersigned, no member of the Senate is freer from suspicion of having procured his election to the body by improper means than Senator Grover, whUe none perhaps has been subjected to more unjust and slanderous accusations, or could have vindicated his character more completely against the assaults of personal and political foes. The only witness who directly or indirectly sought to connect Senator Grover with bribery, or who in fact professed to know anything about the corruption of any member of the legislature, was a man by the name of Styles. This witness, who had made an af- fidavit to be sent to Washington to be used to prevent Governor Grover from taking his seat in the Senate, testified before the committee to a conversation between Governor Grover, Mr. Gilfry, and William H. Watkins in reference to the purchase of the vote of a member of the legislature by the name of Goodman, and also to a conversation which he had with Goodman, and also to seeing another member, by the name of Hosier, come out of the room of Governor Grover into the room of Mr. Gilfry with several hundred dollars in gold in his hands. In reference to the first statement he was contradicted by Goodman, Gilfry, and Watkins, and in reference to the second by Gilfry and Mosier. See testimony of Mr. Goodman, page 445, from which the following extract is taken: "[The Senator here called the attention of the witness to certain passages in the testimony of Mr. Styles, as printed in a newspaper which he held in his hand.] ' ' Question. Did Governor Grover ever make any promise to you of any office whatever in case he was elected ? — Answer. Never. "Q. Did he approach you on the subject of voting for him? — A. I had a talk with jGovernor Grover, but he did not mention concerning my voting for him. " Q. He said nothing in that conversation in the way of inducements; beheld out no inducements for you to vote for him? — A. He did not offer me any inducement what- ever; in the talk "with him he asked me if I was not afraid that I was injuring the pros- pects of the Democratic party in this State by holding out as I did against the caucus, but he never during the conversation asked me to vote for him. " Q. Did you state to this man Styles at any time that you could get a thousand dol- lars for your vote ? — A. I never did.' I consider that that gentleman has done me and Governor Grover a great injustice, and he stands before the people of Oregon to-day- a • perjured viUain. " Q. No person in your county, as I understand, believes any such allegation against you? " Senator McMillan. Senator, that is takmg a pretty wide range, it seems to me. " Senator Saulsbuey. No, sir; this gentleman is a man of character, and I take it that he has a right to say before this committee what he knows as to what his neigh- bors think of this thing. "The Witness. No, sir; nobody believes it. ' ' Q. Are you regarded in your community as a corrupt man ? — A. I think not ; I hope "'q. Do you believe there are any Eepublicans in that county that would charge it upon you?— A. I doti't believe there are. . "O Now I will ask you this question, Mr. Goodman: Did you ever, directly or indi- rectly; receive one dollar for your vote for Governor Grover for the Senate ?--A. No, sir, never; not one dollar. No man ever approached me upon that subject, either of the Grover faction or the Nesmith faction. . ■, i- "O Were vou, directly or indirectly, influenced by any pecuniary consideration or reward in any shape, manner, or form, or by promises of office or money, direct^ or mdi- rertly?in connection with your vote for Governor Grover forthe Senate ?-A. There waa no influence brought to bear upon me whatever. ' ' Seealsothetestimony of Mr. Watkins, page 589, &c. . ... See also testimony of J. H. Mosier, page 412, from which the following extract is **"Qnestion. Do you know a man by the name of W. H. N, Styles, who has testified 612 SENATE ELECTION CASES. before the committee ? — Auswer. I i>t% er saw the man that I know of. That is him right over there, I believe [turning to the left and pointing to a row of by-standers] . No, I am mistaken; I beg your pardon; that is a better-looking man than he was. I will take it all back. He was sitting right over there [pointing] a few momenta ago. " Q. Yon say you never (saw the man that yon know of— never savr him till now? — A. I never saw him till yesterday. I never saw him in my life that I know of till I came here. " Q. That man in his testimony swears as follows: " ' Q. Bid you see Hosier at any time after the election? — A. I did. " ' Q. Where did you see him? — A. I was introduced to him in Mr. Gilfry's office.' ' ' Q. Now, I ask you, Mr. Mosier, if it is true that you were introduced to Mr. Styles in Mr. Gilfry's office, as he swears? — A. I never was; I never was introduced to any man by that name. "Q. He says in his testimony as follows: " ' Q. When was that ? — A. One or two days after the election I sat dovra there waiting for Mr. Grilfry to come in. As I sat there perhaps fifteen minutes, I guess, some gentle- man came in. I supposed Mr. Grilfry was in the other room. I Iieard some one talking in there, but I did not go in. I sat down there. The gentleman came in who was in the other room, that is, in the governor's room. I may have sat there fifteen or twenty minutes and Mr. Mosier came in from the governor's room. ' " Q. I ask you now, Mr. Mosier, if that assertion in this testimony is true ? — A. It is not, sir. I never was in the governor's private room in my life to my knowledge. " Q. You say here upon your honor and upon your oath that that is not true ? — A. I never was in Governor Grover's private room in my life. " Q. The testimony of Mr. Styles goes on: " ' Q. Mr. Mosier came in from the governor's room ? — A. Yes, sir. " ' Q. Through the door in the partition ? — A. Yes, sir. He came into the room where I was and had money in his hand.' " Q. I ask you, sir, if on any occasion you ever were in the governor's room ? — A. I was not, to my recollection. "Q. I ask you, sir, if you ever came out of the governor's room with money in your hand? — A. No, sir; and any man that makes that assertion or testifies to that statement • is a liar, ' ' Senator McMillan. Mr. Mosier, the use of that kind of language does not add any- thing to the strength of your testimony. ' ' Senator Saulsbuey ( to the witness) . Say it in yourp wn language, sir. You have a perfect right to defend and vindicate your reputation here and elsewhere. "The Witness. Yes, sir; I have, and I will do it, too. I have a right to say what I know about this thing, and I say it is false. " [The answer of the witness was greeted by applause from a portion of the by-stand- ers.] "The Chaieman. I said a while ago that if these unseemly demonstrations were repeated I should feel it to be necessary to clear this room. Any demonstrations of applause, or otherwise, calculated either to encourage and embolden or to discourage and intimi- date a witness are evidently improper. I shall let it pass this time; but if after this second warning this thing is repeated I shall have the room cleared. I do not want to give anybody any oflfense, or to put anybody out if I can help it, but such demonstrations as this are highly improper, as every man who indulges in it must know, and cannot be tolerated here. "The Witness. These things do not encourage me any; I shall state the facts all the same, whether they stamp their feet or not. ' ' See also testimony of H. H. Gilfry, from which the following extract is taken: "Senator Saulsbitey. I ask you, sir, if you ever saw Mr. Mosier in Governor Grover's private office? — Answer. No, sir; I did not. I do not think he was in there at all during the session of the legislature. ° "Q. Was he ever in the governor's private office with you? — A. Mr. Mosier? No, sir; he never was. " Q. Did you ever see any money paid to Mr. Mosier?— A. I never did; no, sir. "Q. Or to any other member of the legislature ?— A. I never did; not a cent, sir. "Q. On the occasion here referred to, or at any other time? — A. No, sir; never. ' ' Q. Did you ever see Mr. Mosier with any money in his hand in your room ? — A. No, sir. "Q. Or anywhere else? — A. No, sir. " Q. Did you ever come from the governor's room into your own office and find Mr. Styles in your own office ? — A. No, sir; I never did. "Q. Do you pronounce that statement, then, so far as it relates to you, an unmiti- gated falsehood? — A. I do, emphatically. It is an unmitigated falsehood, without any foundation whatever. " — (Testimony, page 578.) LA FAYETTE GEOVER. 613 In relation to other matters testified to by Styles, intended to affect the character of Senator Palmer, of the State legislature, he is not only contradicted most positively by Senator Palmer, but his testimony is proven to he false by the overwhelming testimony of from four to seven witnesses, on every important point. Styles is also impeached by more than twenty witnesses, who swear that his character for truth was bad, and that they would not believe him on oath. Nothing but the importance which was attached to the statements of this man Styles by those who originated and prosecuted the charges against Senator Grover could have justified so extended a notice of his testimony; but it would be improper to dismiss the statements of this witness without saying that for his perjury in this investigation he was indicted in the United States district court in Oregon and tried before a jury largely composed of Republicans, eleven of whom were in favor of conviction to one opposed; and on a second trial he again escaped because of a divided jury. At this last trial the most important witness to prove the guilt of the accused was necessarily absent, attend- ing to his public duties in Washington. It will be observed from an examination of the testimony that the theory of those who sought to impeach theregularity of the election of Senator Grover was that the money used in the alleged bribery of members of the legislature was furnished by the Hon. Joseph S. Smith, formerly a member of Congress, and Hon. B. Goldsmith, formerly mayor of the city of Portland. Mr. Smith came before the subcommittee and swore that he never, dire,ctly or indirectly, furnished any money to influence the vote of any member of the legislature on the Senatorial or any other question ; that he was in Salem but once, and only for a short time, during the Senatorial contest, and then only to prevent the use of his own name for the position, which he had been informed might be done; and that he did not while there speak to any member of the general assembly on the subject of electing a Senator. i Mr. Goldsmith was, during the investigation, in the city of New York with one of his children, whom he had taken there for the purpose of having a difficult operation per- formed, and was consequently not before the committee, hut telegraphed to the chairman his willingness to appear at anytime and place convenient to the committee, and testify touching his alleged complicity with the corruption of members of the legislature, and subsequently sent an affidavit denying emphatically having furnished one dollar for the purpose of affecting the action of any member of the legislature upon the Senatorial ques- tion. Independently of the statements of Mr. Goldsmith himself, it was abundantly proved that he took but very little part in the contest, and was present in Salem only to procure legislation affecting his own interest, and for that reason was careful not to be- come mixed up in the Senatorial question, which might prejudice his own business before the legislature. Besides, it was conclusively shown that Mr. Goldsmith's financial con- dition was at the time such that he could not, if he had desired, advance money for so improper a purpose. The only members of the legislature who voted for Senator Grover against whom the least whisper of suspicion was heard in the undefined rumors circulated by party malig- nity or inspired by the chagrin of disappointed hope were Mr. Goodman, of Umatilla County; Mr. Straight, of Clackamas County; Messrs. Mosier and Butler, of Wasco County; Senator Palmer, of Benton and Polk Counties; and E. W. Wilson, deceased, a represent- ative &om Clatsop and Tillamook Counties. r,. ■ ■, ^ 'Whatever suspicions were indulged at any time in reference to Goodman, Straight, Butler and Palmer, except so lar as Mr. Goodman was charged by Styles, had their only foundation in the fact that they were known to be in favor of another gentleman for Sen- ator and some of them did not recognize the binding obligation of a caucus nomination, and therefore did not take part in the caucus, and voted in the separate houses and in ioint convention several times for their first choice for Senator, and until they became satisfied that he could not be elected, when they cast their votes for Senator Grover. All of those gentlemen are men of character and standing in their respective counties, and testified before the subcommittee denying most positively that they had been influ- enced in voting for Governor Grover by any corrupt or other improper consideration, snd exulained fully their entire course upon the Senatorial question. Neither of them liatl aught against Senator Grover, who, they declared, was from the fi-^* ^f^^^^^^ clioico. Their testimony is full upon this pomt, and the undersigned refers to it with fu" coiifi- dence that it will satisfy every one who will take the trouble to reaxJ it of the candoi and hon^ty of the witnesses, not only in testifying before the subcommittee, but in their pTitire action upon the Senatorial question. . wSh reference to Mr. Mosier, his indiscreet conversation while intoxicated gave rise to susnicions that he desired to procure money for his vote for Senator, and the man Styles wiS^doubtless instigated thereby to charge him with having received money from Goy- Tmor Grover, as alrlady stated. The testimony of Mr. Mosier in reply to the statements T^+vles has already been given. In his testimony he further stated that his only ob- ject m the conversations cited against him was to ascertain the truth of rumors to the 614 SENATE ELECTION CASES. effect that money was being used to defeat the election of Senator GroTcr, and that he neither received nor desired to receive one cent for his vote on the Senatorial question. The testimony shows that he voted in caucus and on every vote but one in the separate houses and in joint convention of the two houses for Senator Grover, and that he with- drew his support from Grover on one vote because he was informed that the Senator was opposed to certain local improvements in which the people of his county were interested, and upon being assured that he had been misinformed upon that point he again voted steadily for Governor Grover, who was his first choice. He was shown to be a reputable and honest man by persons who had known him for a long time, and to be in good cir- cumstances and under no necessity to obtain money in any improper way. The under- signed does not believe that Mr. Hosier was either given or promised pecuniary or other reward for his support of Senator Grover, and that whatever suspicions were entertained against his integrity were traceable to his own indiscreet conduct while in a state of inebriety. The only other member whose character was assailed by suspicions detailed before the subcommittee was E. W. Wilson, deceased. Mr. Wilson, being dead, could not person- ally vindicate his character before the subcommittee; but everyground alleged for the suspicions entertained by any one against him was fully met and shown to be without foundation. He was shown by the testimony of Governor Chadwick and other gentlemen who knew him well to be a man of sterling integrity and character, and_ in the opinion of the undersigned, based upon the testimony before the subcommittee, not the slightest justification existed for the attempted defamation of his fair name while living or his memory now that he is no more. He had always been a Democr.it of the strictest sect, adhering to the usages of the party and supporting its candidates, whether made in con- vention or in caucus, and but followed out the rule of his life and the will of his constit- uents in supporting Governor Grover after he was nominated in caucus, although his personal predilections were in favor of another. An attempt was made by a Eepublican by the name of Brown, an employ^ about the custom-house in Portland, to induce him by an offer of |1,500 to vote against Grover. Mr.' Wilson communicated this insult to friends and took legal advice with a view of prosecuting Brown criminally for his offense. Brown testified before the committee to his own infamy and guilt, but failed to inculpate Wilson in his crime or cast a stain upon his untarnished memory. In the opinion of the undersigied no more unjustifiable at- tempt or more signal failure was ever made to blast the reputation of a worthy man. A careful exaniination of the testimony taken before the subcommittee it is confidently believed will satisiy any unbiased mind that the story of bribery and corruption in the election of Senator Grover was unwarranted by any fact or circumstance worthy of a moment's consideration. Even the most uncharitable political opponent will find in that testimony not only ample refutation of the slanderous rumors circvilated to the prejudice of Senator Grover and the members of the legislature who supported him, but abundant proof that his election to the Senate was free from every taint and honorable alike to him and the legislature of Oregon. It will be observed that the memorials hereinbefore set out, referred to the Committee on Privileges and Elections, do not charge Senator Grover directly with procuring his election to the Senate by corrupt means, but simply state that "it is currently reported and generally believed" that such was the fact, and ask that he be denied a seat in the ' Senate until these charges are investigated. The undersigned cannot withhold the ex- pression of his conviction that great injustice was done to-Senator Grover by the consid- eration given in the Senate to these loose and undefined charges, if charges they can be called. They were made the basis of an objection to his right to a seat in the Senate, which was not withdrawn until it had been announced ou the floor of the Senate that he would ask an investigation. It is the first time in the histoiy of the Senate when charges so vague and indefinite against a member-elect have received the least consideration, and it is to be hoped that it will not hereafter be regarded as a precedent to excuse injustice to others entitled to seats in this body. The testimony will show that these memorials were distributed from the custom-house in Portland (where they were proved to' have been first seen) through the mails to Eepublican postmasters for the purpose of procuring signatures; and the man Brown, already referred to, employed in some subordinate position about that building, testified that he went into different counties with these petitions for that purpose. With the exception of this man Brown, no satisfactory proof could be obtained as to who were the guilty parties; but in the opinion of the undersigned, drawn from allthe facts and circumstances proved in this investigation, the charges against Senator Grover contained in these memorials originated in a conspiracy to deprive hira, by per- jury and subornation of perjury, of a seat in the Senate to which he had been iairly elected by the legislature of Oregon, ELI SAULSBUEY. STANLEY MATTHEW!. 616 [Forty-fifth Congress — Second" and third sessions.] STA^S^LBY MATTHEWS, Senator from Ohio from October 15, 1877, till March 3, 1879. Juue 5, 1878, Mr. TVIatthewa submitted a rcsuUitiou tlmt a select committee be appointed to consider what connection, if any, he had had witli any real or prelended frauds committed in the conduct and returns of the election in the State of Louisiana in 1876, and with any promises of reward made by any one to one James E. Anderson in consideration of any ofticial conduct by said Anderson in relation to said election, and to inquire into all the circumstances of any recommendation by him- self of the said Anderson for appointment to office. The resolution was agreed to. March 1, 1879, the committee reported that they met on the 21at day of June, 1878, for the purpose of examining Mr. Anderson ; that he refused to testify ; that Congress having adjourned they could not compel him to testify; that the committee met again in December, 1878, and not agreeing to a motion that the Senate be requested to take proceedings to compel Mr. Anderson's attendance, reported to the Senate a resolution that the House of Kepresentalives be requested to transmit to the Senate a copy of Mt. Anderson's testimony relating to Mr. IMattliews before a House committee; that ihc testi- mony was transmitted and referred to this committee January 2S, 1879 ; that Mr. Matthews was then examined. The committee found unanimously the statements of Mr. Matthews to be true; tliat he had had no connection with any real or supposed frauds in the election in Louisiana, and that he was not guilty of any corrupt conduct in any of the matters referred to in the testimony, while they regarded his action in respect to Mr. Anderson's effort to obtain an appointment to office, under the circumstances, as wrong and injurious to the public interest. No further action on the subject was taken by the Senate. . , . , , ,. .. , „ The history of the case here given consists of a transcript of the proceedmgs of the Senate relat- ing to it from Senate Journals 451hCong., 2d and 3d sess., and the report of the conmiittee from Senate Reports, 45th Cong., 3d sess., vol. 2, No. 867. There were no debates. Wednesday, June 5, 1878. Mr. Matthews rose to a question of privilege, and having addressed the Senate upon the subject of certain statements made elsewhere, calculated to reflect upon his charac- ter and standing as a member of the Senate, submitted the following resolution; which was considered by unanimous consent, and agreed to: ' ' Resolved That a select committee of seven Senators be appointed to inquire into and consider all things touching the matter stated and referred to by the Senator from Ohio TMr Matthews] and the events connected therewith, and particularly what connection, if any that Senator had with any real or pretended frauds or other wrongs committed m the conduct and returns of the election in the State of Louisiana in 1876, and with any promises of protection or reward, if any, made by any one to one James E Anderson, or others, in consideration of, or connection with, any official conduct by said Anderson or others in relation to said election or the returns thereof; and into all the circumstances ot anv recommendation by the said Senator of the said Andersbn lor appointment to ofiice; and that said committee have power to send for persons and papers, to employ a clerk and stenographer, and have leave to sit during the recess. Ordered That the committee be appointed by the President j;ro i- j Eesolved, That Mr. Matthews mayand ought to be examined in the same manner a]id to the same extent as if Anderson had testified before this committee to the same matters stated m his testimony before the House committee.' " By Mr. Whyte: I, "?i Senator Matthews, in pursuance of the resolution which has been read to you, I should like to ask you whether at the meeting at New Orleans, which you attended in pursuance of the request of President Grant, anything was said about protests in regard to the election in East and West Feliciana?— A. Do you mean the interview that I re- ferred to as having been held at the custom-house with General Anderson and Governor Wells ? "Q. That is the interview.— A. There was no conversation on that subject at that time nor at any time between myself and those two gentlemen, members of the return- ing board, or between them and others in mypresence at any time. ' Q. I do not ask as between them and yourself, but between yourself and any other , persons ?— A. Nor between myself and any other persons. " Q. Did you know anything about the failure to make protests by these supervisors in regard to the returns from their parishes at the time the returns were regularly made? "Mr. Edmunds. I wish to suggest that that inquiry appears to imply that there was a failure to file protests, about which I know nothing and I believe the committee know notliing. "The Chaiumabt. Mr. Whyte will modify the question, I suppose. ' ' Mr. Whyte. The word ' failure ' probably I ought not to use. I supposed everybody remembered the fact that the protests were made in New Orleans, and not made in the parishes. "Mr. Edmunds. I do not remember any such fact. I do not know anything about it. " Mr. Whyte. The protests are in this testimony and show that they were made in New Orleans. They were part of the document which Mr. Sherman presented to the Senate. "Mr. Edmunds. I only make the suggestion because I know no such fact, know noth- ing about it. I only wanted to avoid the committee being committed to an implication which the question seemed to make. It may be a correct implication or it may not. "Mr. Whyte. I would only say that the protest to which I refer in regard to East Feliciana is dated at New Orleans, and sworn to before ^Judge Campbell on the 10th of November, 1876, and appears in Senate Miscellaneous Document No. 2, Forty-fourth Congress, second session, page 223. "The Witness. It is also in this testimony of Anderson, on pages 5 and 6. "Mr. Whyte. It is. "The Chairman. The House Ijas sent to us the entire testimony of Anderson; in other words, has sent us testimony which we did not ask for, and of course it is all printed in this volume. It may not be material in this connection, but it may become so hereafter, and therefore I call attention to the fact. "The Witness. May I go on now? " The Chaieman. Yes, sir. " The question of Mr. Whyte was read to the witness, as follows: " ' Do you know anything about the failure to make protests by these supervisors in regard to the returns from their parishes at the time the returns were regularly made?' A. During the few days I was in New Orleans, between the 13th and 19th of Novem- ber, 1876, I did hear as a matter of conversation in reference to one or the other, if nob both of the parishes of East and West Feliciana, that it was reported that the protests jetjuired bv law to be made by the officer in charge of the election, called, I believe, the 628 ^ SENATE ELECTION CASES. Bupervisor of registration, was not made on the day of the election, nor at the place of the election, but was supplied subsequently, but at what time and place I do not remember to have heard; and I understood that the question would arise in reference to the valid- ity of those protests as affecting' the returns of the election at those places in regard to the jurisdiction of the returning board to go into the question of those facts, which, un- der the law, were thought to give them power to invalidate the election itself— such as intimidation, force, fear, riots, &c. I say I heard it as a matter of conversation, but from whom, and where, I cannot state positively, except, as heretofore stated, I did not hear anything said on that subject in the interview at which either of the members of the returning board was present. "Mr. Edmunds. Mr. Chairman, I wish to submit for the consideration of the commit- tee, as a matter of fairness towards every member of it, that the answer of this witness has no tendehcyto establish the fact of the protests not having been made regularly and according to the laws of Louisiana, and that it can only be received so far as it may affect his personal conduct in relation to the transaction. I do not ask the committee to decide the question now; but, in order that it should not be misunderstood hereafter, I make this suggestion. "The Chaieman. The suggestion will go in the record. ^ "Q. (ByMr. >Vhyte.) Senator Matthews, Anderson hasstated that he told you incon- ■ versation, in March, 1877, that his parish of East Feliciana had been 'thrown out on a forged protest.' Did he make any such statement to you as that? — A. He did not tell me anything of the kind. "Q. Did he then tell you of any promises made to him by anybody in Louisiana in regard to any service that he had rendered in his capacity as a superviser of registration, and that those promises had not been kept? — A. He did not. " Q. Did he say more to you than to appeal to your generosity togethim some position on account of his services to the Eepublican party, or did he explain to you that he had rendered peculiar serviceswhich ought to be rewarded? — A. His appeal to me was to my 'generosity and sense of justice to assist him in getting some employment in the Govern- ment, largely if not mainly on account of serviceswhich he claimed to have rendered to the Republican cause in Louisiana, the nature of which he related quite at length, giv- ing me instances of his as.sisting in the organization of the party in different parts of the State, in looking to the interests of the party, and mentioned that these services were peculiar in the sense that they had been efficient, and that they had been dangerous, for he referred to the fact that they had been rendered at grea't sacrifice of time and of what means he had, with the exposure of his person not only to ill-health but to peril of life from his political adversaries; but there was not in the whole of this account the most distant allusion that was not, according to his description of it, entirely honorable and such as an honest man might render if he felt the degree of interest which he claimed to have done in his party and its principles and its cause. " Q. Did he explain to you after that the nature of the Nash- Anderson agreement, which you say he delivered to you, in that conversation? — A. Yes, in the way which I have - already stated. "Q. Then did he tell you of the Weber- Anderson agreement in that same conversa- tion ? — A. My recollection is that he did not. ' ' Q. Did you tell him to go to New Orleans and wait for the commission known as the MaoVeagh commission, which was contemplated at that time? — A. I understood him to say that hewason his wayto New Orleans, or thathe was going to New Orleans, and Istated to him that the first opportunity I should have to endeavor to do for him what beseemed to wish at that time would be when the commission arrived in New Orleans; that being personally acquainted with General Harlan, and as he desired an effort to be made to improve his condition in the custom-house, I would give him a letter of introduction to him when I heard of his arrival in New Orleans. "Q. Did he speak of any penitence in regard to the exaction of such an agreement from Nash as is disclosed by this paper? — A. That I inferred from the apologies which he made in reference to it in having me understand that it never was intended to mean what it appeared to mean on, its face. " Q. Then how do you account for the language in his letter of March 27, to be found on page 104: " 'Nash will be here this week, and will demand possession of that agreement, after offeriog me a (possibly) clerkship. Of course I shall decline. Shall I inform him that it is in your possession ? ' ' ' What was the meaning of that? — A. I have no means of answering that. There was no statement made by Mr. Anderson to me of any understanding between him and Mr. Nash in respect to the possession of the agreement. The only explanations he made in regard to its nature were those which I have already given, and I cannot of course say ■ffbat he meant bjr this, In reply to his qu&stion as to whether he shoqW inform Nasll STANLEY MATTHEWS. 6^9 that it was in my possession, I answered him that I desired him to inform Mr. Nash of that fact in my letter of introduction of March 29, in which I say, ' Yon should say to Nash, if inquired of, that I have the agreement, ' as I desired that Mr. Nash should know that feet. "Q. Why did you wish Mr. Nash to know that?— A. In-order that Mr. Nash might be relieved in his own mind from any such coercion as might be possibly implied from his knowledge of the existence of the paper and his ignorance of its whereabouts. Ib other words, to relieve him from that which Mr. Anderson described as the object of taking it — that is, Anderson's hold upon him. . "Q. What had Mr. Anderson to say to General Harlan confidentially, which is the language I think yon use in your letter? — A. I say in my letter of March 29, introduc- ing Mr. Anderson to General Harlan: 'This will be presented to you by Mr. J. E. An- derson, who may desire to communicate with you confidentially. ' What I referred to was the same matters which he had related to me as the foundation for his own claims to my good-will, and particularly that portion which consisted in the description of the hostility which he said he had incurred from the leaders of the Republican organization in New Orleans, described as Packard, Kellogg, and others. "Q. Mr. Darrall says in his letter that he had talked with you about the Sherman letter; but I think you said you knew nothing about the Sherman letter? — A. Nothing in the world. "Q. In his letter of April 7 Anderson says: 'Inclosed find Weber agreement. This-is the last piece of documentary evidence in existence. ' I understood you to say that you knew nothing of that agreement prior to this letter? — A. I did not, nor of the Pitkiu agreement spoken of in the preceding sentence. "Q. On page 111 of the House testimony I find this indorsement apparently on an ap- plication of Anderson to be appointed under the State Department as consul: " 'For important reasons I specially request that this request be complied with.' "That is the request that he may be appointed to a foreign consulate, and then below it: " ' Executive Mansion. Application for appointment United States consul at Callao, Peru. Senator Matthews requests that this appointment be made for important rea- sons.' ' ' What ' important reasons ' were there that a man like Anderson should beappointed to a consulate? "Mr. HoAB. On what page is that? "Mr. Whyte. I do not see it in the little volume which you have printed here; but it appears in the volume printed by the House. "The Chaieman. Then the House have not sent it to us. " Mr. Whyte. The House have sent all of Anderson's testimony, but have not sent von these letters and papers. ,^ ^. , t t- j /• • i,- "The Witness (after exammmg the document). The only reasons I had lor wisnmg it were those that I have already explained as operating on my mind in furthering his wishes in respect to an appointment. , ;, ,■ J,-, , i. * +i. i " Q (By Mr. Whyte. ) You subsequently recommended him, did you not, to the col- lector at New Orleans for an appointment as deputy collector?— A. I did. "Q. And he did not succeed?— A. He did not. ^' ,, ^, ^, ^ ,, "O On hiswayback from New Orleans to Washington he alleges that he stopped tosee von at Cincinnati in May ?— A. I remember Mi;. Anderson being in my office subsequently to the first interview; but at what time, either in point of time aa to the month or as to the dl^ of the month, or at what period in the history of the whole matter, I 'do not '"'"O^T^eSon states that in that interview you remarked to him- „ _ . " 'You EO right back in the next train; I have just to-day had a letter from the Presi- dent io^efard to yonr case, and I have written him such a letter as will secure your annointment to some position.' . m. •„ ^«+ "g ^iKlSe^^^wtSSe^aletesl'^^^^^^^ dispatch of June 1, con- ^^^iThrPrS^rclaimst^hav^^^^^^^^^ ""'^fon P."e"2""Ttto?y S^edtXe 1051! the oiie I received, and is the one rrnish^by me to General Cox, who prodded it before the House committee ^"^"o But the date I think is Wrong ?-A. The date must be wrong. It is dated May 1 ' there, but it ought to be 'June 1,' undoubtedly. G30 SENATE ELECTION CASES. "Q. The next day he sends you the letter, as I understand, on page 106, stating that he had sent that dispatch on the spur 6f the moment, which he thinks you might mis- construe? — A. Yes, sir. "Q. And then remarks, 'do not understand me as threatening yon.' Now, in that same letter he say? that he Jias 'thought of a plan by which the President can get rid of me without embarrassing himself; that is, to give the appointment I ask to a gentleman whom I shall designate.' Where was the necessity of the President getting rid of aman like Anderson? — A. I have no more knowledge on that pointthan you — than Mr. Ander- son's ovra statement. "Q. Then why was the arrangement made to give his brother a place in the Baltimore custom-house ?^A. All I can answer in regard tothat is what I afterward ascertained, and that is that it was offered and given to Anderson, and that he tried it and became very much dissatisfied immediately with it, as he expressed himself in his letter of June 19, on page 106, where he describes what the duties of the oflSce were, and then threw it up, refused to Ijeep it, but succeeded, as I understood, in obtaining from Gen- eral Smith the appointment to the same place, as I always understood, of his own brother. " Q. I call your attention to the fact that in this letter of the 19th he says that place has been offered him and he has declined it? — A. I know he does say so, but he told me, as I have already stated, when I met him on the train going from Washington to Baltimore, that he was going over there to enter on the duties of it, and was then very much pleased with the idea of having the employment.' The next I heard was- that I received this letter of June 19, in which he expressed his disgust at the position of inspector of customs. I inferred from that that he had actually entered on the duties of the place, had found what was required of him, and found that they were duties that he was not disposed to perform, and then wrote me that letter in which he says he declined it. My informa- tion subsequently was that this arrangement was made which I have just related, that having obtained employment in the office of the North American he abandoned all de- .sire to have any appointment of his own, and obtained from the appointment clerk, Gen- eral Smith, the appointment of his brother to this place in the Baltimore custom-house, which he himself was not willing to have or to keep, whichever it was. " Q. The letter of General Smith seems to confirm the theory that he declined alto- gether to consider the place? — A. I notice that it does. Nevertheless, I still say that he told me that morning on the train going to Baltimore that be was going over there for the purpose of entering on the duties of that office, and I inferred from that statement that he had in fact done it. When I got that letter I presumed that he had probably, on the experience of a day or two, found it was not what he thought it was, and had given it up. It may be, however, that he never did for a day occupy the office. I do not know personally about it. " Q. On the 11th of February, 1878, he alleges that he addressed you a letter from Phila- delphia. Without going into the whole letter — it is on page 107 of the printed testi- mony — there occurs in it this paragraph: " 'In May last I warned you of just such a state of affairs as has come to pass. Had you adopted my suggestions then (in two respects), it could have been avoided. It is not too late yet, if prompt measures are taken. " 'Am no applicant for nor would I accept anypositiion under the administration, and only desire to avoid the scandal that is in prospective. ' "What did he mean could have been avoided, do you know, in that letter? — A. I do not. My answer to that letter is contained in a letter printed on page 38 of this state- ment, though there is still some mistake about the date. It must be 'February 12,' although printed 'February 2,' if his letter be correctly dated February 11, for I say: " ' I have your note of yesterday, and in reply beg to say that I do not recollect the suggestions heretofore made by you, to which you refer, and which you think if adopted might still prove advantageous to the public interest, and I would be glad to have you adopt them.' ' ' This is a misprint. It does not make any sense. " 'I have, however, been subjected to so much misrepresentation in regard to every- thing I have undertaken to do that I do not think it would be wise for me to go to Phila- delphia or Baltimore for the purpose of meeting you. In case you should find it convenient to be in Washington, I shall be pleased to see you.' "What he referred to I do not know and never did. "Q. Why did you head that 'personal and- confidential ' ; was there anything special in that? — A. Ho, sir; nothing more than to have it so understood that I was not writing it for publication. I am satisfied there is a misprint in the letter in the -words ' and I would be glad to have you adopt them.' That phrase has no meaning there, and it must be some other term that was used; it must be either 'mention them' or 'repeat them.' Probably ' repeat ' is the word. STANLEY MATTHEWS. G31 The Cl-t AIRMAN. 'Repeat' is probably the word intended there, but you say you have no recollection of it?— A. Yes, sir. The Chaieman. The date is explained in the next sentence, because it says the let- ter 1^ postmarked ' Washington, February 12, Congress ' ?— A. Yes, sir ; the date must be February 12. "Q. (By Mr. Whyte.) You wrote to Secretary Evarts on the 14th of May, as these papers seem to show, from Cincinnati a letter recommending Anderson for a consulship. The letter is on page 30 of the printed testimony furnished to the committee, Exhibit O. This letter was written after you had received the Nash agreement and the Weber agree- ment?— A. Yes, sir. ' y. In this letter you say you had had a private conversation with the Secretary, and repeat tha|t Mr. Anderson has ' been compelled to act a very difficult part, ' and has ' very strong claims upon the administration in the public interests. ' Did yoii think that that was a proper man to represent this Government abroad whom you knew to have exacted these two papers for the purpose of black-mailing the parties ? — A. In the abstract I should say no. Under the circumstances I thought it was better to have even such a man put into a position such as might be found for him than to have had the scandal of a publi- cation of these papers. That was my opinion at that time. "The other members of the committee having declined to ask any further questions, The Chairman. Do you wish to make any further explanation or statement? " Mr. Matthews. No, sir. "The committee then deliberated upon the question whether further testimony should be taken or other witnesses called, and no member of the committee proposing to sum- mon any witness, the chairman was requested to make the following statement to Mr. Matthews: ' ' ' Mr. Matthews, the committee have decided that they do not desire to call any wit- nesses at present. Do you wish to submit any further testimony, or do you desire the committee to summon any witnesses? ' "Mr. Matthews. I do not." Thereupon it was unanimously agreed that no further testimony should be taken, all of which will more ful'ly appear from the printed minutes and proceedings of the com- mittee herewith reported. The committe confine themselves to the foregoing narrative of the fapts, and, after ful 1 consideration, they flnd»unanimously the statements of Mr. Matthews to be true, and that he had no connection with any real or supposed frauds in the election in Louisiana, and that he has not been guilty of any corrupt conduct in any of the matters referred 1 o in the testimony, while we cannot but regard his action in respect to Ja*nes E. Ander- son's effort to obtain an appointment to office, under the circumstances, as wrong and injurious to the public interest. Proceedingg of and before the select eommiitee of the Senate appointed .wnder tlie resolution of ■ June 5, 1878. Tuesday, June 11, 1878. The committee appointed in pursuance of the following resolution adopted by the Senate on the 5th instant, met: "Resolved, That a select committee of seven Senators be appointed to inquire into and consider all things touching the matter stated and referred to by the Senator frotn Ohio [Mr. Matthews], and the events connected therewith, and particularly what connection, if any, that Senator had with any real or pretended frauds or other wrongs committed in the conduct and returns of the election in 'the State of Louisiana in 1876, and with anv promises of protection or reward, if any, made by any one to one James E. Ander- son, or others, in consideration of, or connection with, any official conduct by said An- derson or others in relation to said election or the returns Ihereof ; and into all the circum- stances of any recommendation by the said Senator of Ihe said Anderson for appointment to office; and that said committee have power to send for persons and papers, to employ a clerk and stenographer, and have leave to sit during the recess. " , ™ • j ' Present: Messii. Allison, Ingalls, Hoar, Davis of Illinois, Whyte, and Jones of Florida. After consultation it was determined to summon James E. Anderson as a witness lor Thursday. next. „, , ^ j. On motion, the committee adjourned to meet on Thursday next at noon. Thubsday, June 13, 1878. The committee met at 12 o'clock m., pursuant to adjournment. Present: Messrs. Allison, Hoar, Davis, Whyte, and Jones. Tames E. Anderson, who had beensummoned to attend as a witness, also appeared. The Acting Chairman (Mr. Allison). The witness, Mr. Anderson, is here; but I 632 SENATE ELECTION CASES. have this moment received a note from Mr. Morrison, of the House of Representatives, •which I will read: HoU8E OF Eepeesektatives, Washington, D. C, June 13, 1878. Mr. Senator ALLISON, Chairman, of the United States. Febeuaey 17, 1880. — Ordered to be printed. Mr. Saulsbury, from the Committee on Privileges and Elections, submitted the fol- lowing report: The Committee on Privileges and Elections, to whom were referred memorials relating to the election of Hqn. John J. Ingalls a Senator from the State of Kansas by the legis- lature of that State, have had the same under consideration and submit the following report: The committee, under the authority of a resolution adopted by the; Senate, appointed a subcommittee of its members with instructions to investigate the charges and state- ments contained in said memorials. In discharge of the duty assigned them the mem- bers of the subcommittee met during the recess of the Senate in the city of Topeka, in said State, and examined a large number of witnesses, whose testimony, together with thfe testimony of witnesses examined before the whole committee during the present session, is herewith submitted tp the Senate. The views entertained by the committee render it unnecessary to refer more particu- larly to the testimony, which will be found to sustain the conclusions of the committee expressed in the following resolution: Besulvcd, That the testimony taken by the committee proves that bribery and other corrupt means were employed by persons favoring the election of Hon John J. IngaDs to the Senate to obtain for him the votes of members of tihe legislature of Kansas in the Senatorial election in that State. But it is not proved by the testimony that enough votes were secured by such means to determine the result of the election in his- favor. Nor is it shown that Senator Ingalls authorized acts of bribery to secure his election. VlEvrs of the miNoeity. The undersigned, a minority of the Committee on Privileges and Elections, who were directed to investigate certain statements and charges concerning the recent election' of a Senator in the State of Kansas, respectfully submit our views as loUows: We concur in part of the report. We exonerate Mr. Ingalls from any complicity with improper practices. We also find that the result of the election was not accomplished by such practices. We think that when the report goes further and finds that persons favoring Mr.- Ingalls's election were guilty of such practices, it should in justice state what was clearly and unquestionably proved, that such means were employed in oppo- sition to his election. ANGUS CAMERON. JOHN A. LOGAN. GEO. F. HOAR. [Third session of the Forty-sixth Congress. ] Feiday, January 21, 1881. Mr. Plumb submitted the following resolution; which was referred to the Committee to Audit and Control the Contingent Expenses of the Senate: " Sesolved, That there be paid to J. V. Admire, L. T. Smith, E. B. Purcell, and George T. Anthony, out of the contingent, fund of the United States Senate, the mileage for at- tending as witnesses from the State of Kansas in theinvestigation of the election of Hon. J. J. Ingalls the same as the other witnesses received." • [The debate is found on pages 814, 815 of the Congressional Record, vol: xi, part l.J Feiday, Jaimaru 28, 1881. On motion by Mr. Hill, oi' Georgia, Ordered, That the Cpmn^ittee to Audit and Control the Contingent Expenses of the JOHN J. INGALLS. 641 Senate be discharged from the further consideration of the resolution submitted by Mr. Plumb January 21, 1881, directing the payment of certain witnesses in the investigation of the election of the Hon. J. J. Ingalls, and that it be referred to the Committee on Privi- leges and Elections. EEIMBUKSEMENT OF ME. INGALLS'S EXPENSES. Pkiday, March 31, 1882. Mr. Hoar,_ from the Committee on Privileges and Elections, reported the following res- olution; which was read the first and second times by unanimous consent: " Resolved, That there be paid out of the contingent fund of the Senate the sum of $8,195 to John J. Ingalls, a Senator from the State of Kansas, in reimbursement of ex- penses necessarily incurred by him in defense of his title to his seat." The Senate proceeded, by unanimous consent, to consider the said resolution as in Com- mittee of the Whole; and no amendment being made, it wak reported to the Senate. Ordered, That it be engrossed and read a third time. The said resolution was read a third time by unanimous consent. Resolved, That the Se"Pte agree thereto. SE 41 642 SENATE ELECTION CASES. [Special session of Senate, October, 1881, and first session of the Forty-seyenth Congress.} ELBEIDGE G. LAPHAM AND WAENBR MILLER, of New_ Tori. October 11, 1881, the day on which Messrs. Lapham and Miller took their seats, a memorial wa» g resented remonstrating: against their admission until certain alleg:ations affecting their elections ad been investigated. October 21, the memorial was referred to the Committee on Privileges and Elections, December 12, the committee reported back the memorial and asked thdt it lie on the table, and that the committee be discharged from its further consideration. It was so ordered Dfe- cember 13. The statement of Mr. Hill, in the nature of an oral report, given below, will show the nature of the allegations of the memorial, andijhe reasons for the action of the committee. The history of the case here given consists of a t^^ansoript of the proceedings of the Senate relating to it from Senate Journal, 47th Cong., 1st sess., and the remarks of Mr. Hill from the Congressional Kecord, vol. xiii,part 1, pages 70, 71. There were no debates. [Special session of Senate, October, 1881.] Monday, Ocioier 10, 1881. Mr. Edmunds presented the credentials of Elbridge Gr. Lapham, elected a Senator by the legislature of New York to fill the vacancy occasioned by the resignation of the Hon. Eoscoe Conkling; which were read. Mr. Edmunds presented the credentials of Warner Miller, elected a Senator by the, legislature of New York to fill the vacancy occasioned by the resignation of the Hon. Thomas C. Piatt; which were read. Tuesday, October 11, 1881. On motion by Mr. Edmund^ that the oath prescribed by law be now administered to Elbridge G. Lapham and Warner Miller, Senators-elect from the State of New York; Pending which, Mr. McPherson presented a memorial of certain members of the legislature of New York, remonstrating against the admission of Mr. Lapham and Mr. Miller to seats in the Senate until certain allegations affecting their elections have been investigated. Ordered, That it lie on the table. The question recurring upon the motion of Mr. Edmunds that the oath prescribed by law be now administered to the Senators-elect from the State of New York, it was deter- mined in the affirmative. Mr. Lapham and Mr. Miller then appeared, and the oath prescribed by law haying been administered to them by the President pro tempore, they took their seats in the Sen- ate. Friday, Octoher 21, 1881. Mr. McPherson presented a memorial of Miner Gallop and E. H. Pinney, of New York, remonstrating against the admission of Warner Miller and Elbridge G. Lapham to seats in the Senate until certain allegations afiecting their election shall have been in- vestigated; which was referred to the Committee on Privileges and Elections; and, On motion by Mr. McPherson, Ordered, That the memorial of certain members of the legislature of New York relating to the same subject, heretofore presented, be referred to the Committee on Privileges and Elections. [First session of the Forty-seventh Congress.] Thursday, December 8, 1881. On motion by Mr. Hoar, Ordered, That the petitions of the citizens and members of the legislature of New York concerning the elections of Senators Miller and Lapham be taken from the files of the Senate and referred to the Committee on Privileges and Elections. Monday, December 12, 1881. Mr. Hill, of Georgia, from the Committee on Privileges and Elections, to whom was referred the memorial of certain members of the legislature of the State of New York LAPHAM AND MILLER. 643 afiecting the right of the present Senators from that State to occupy seats on the floor of the Senate, reported it hack, with the recommendation that the committee be discharged firom the further consideration thereof; which was agreed to.* [Remarks of Mr. Hill, of Georgia, in the nature of an oral report, delivered December 12,1881, and fotmd on pages 70, 71 of the Congressional Becord, vol. xiii, part 1.] I am instructed by the Committee on Privileges and Elections to report back to the Senate certain memorials from members of the legislature of Kew York affecting the right of the present Senators Irom that State to occupy seats in this Chamber, and to ask that the memorials lie on the tafele and the committee be discharged from their fujther consideration. ' ' In deference to the memorialists, and at the special request of some of them, it is proper that I should state briefly and generally the reasons which authorize this conclusion. " The memorials set forth five reasons as grounds why these gentlemen should not be allowed to sit here. The first alleges that the legislature did not proceed in separate bodies to vote upon the question until the third Tuesday after notice of the vacancy was com- municated by the governor. The facts are such as to create some controversy as to whether they did proceed on the second Tuesday or the third Tuesday after the notice; but, in any view, the committee are unanimously of the opinion that the legislature was not de- prived of its constitutional right to elect Senators to this body. "The second allegation is that at one of the joint sessions of the general assembly a quorum of th» State senators was not present. It is not alleged that there was not a quorum present of each body on the days the respective elections took place, but it is al- leged or claimed that under the act of 1866 the failure of either body to be present with a quorum on any day deprives the legislature of the right to elect. The committee differ with the memorialists in that view. We think that one body of the legislature could not deprive the legislature of the right to elect by such absence, if unquestionably on the day of the election a quorum of each body of the legislature was present and voting. We think the reason alleged in this groimd is not suflicient to invalidate the election. " The third ground alleged is that there was not a majority of the whole legislature actually voting for the members chosen. In our opinion that is not necessary. There was a quorum of each house present in the joint assembly; there was a majority of that quorum actually voting for the members chosen. In our opinion that was a valid elec- tion. . " It is alleged specifically in the memorial that the Stockton case is a precedent to the contrary. On examination it will be found that the Stockton case is not a precedent to the contrary. Mr. Stockton, of New Jersey, in the celebrated case so well known, was chosen, not by a majority, but he was chosen by a plurality vote, the legislature in joint session having declared before the election that a plurality should elect. The Sena- tors now occupying the seats in question, from New York, were not chosen by a plural- ity vote; they were each chosen by a majority, a quorum of each body being present, and a maj Ority of the j oint assembly voting. I will state that if the cases from New York were like the case from New Jersey, I do not think at this day any gentleman would regard the Stockton case as a precedent. Unquestionably the body that elects has a right to pre- scribe that a plurality may elect, and I think the report made by Senator Trumbull on that occasion is not only correct, but conclusive of the law of the case. The committee, therefore are of the opinion that that ground is not sufficient to invalidate the election. "The fourth ground relates to Hon. W. Miller, and alleges that he is guilty of certain conduct in violation of section 1781 and section 1782 of the Revised Statutes which dis- analify a member from holding any office of honor, trust, or profit under the United States Government. It is sufficient to say that the Senator from New York has never been convicted of a violation of those sections of the Revised Statutes, and a simple in- snection of the sections shows that it is conviction that disqualifies, and not allegations bv outsiders or third persons who do not prosecute. Therefore the comnuttee overrule that ground, and think it insufficient, conceding the facts alleged to be true for argu- ment: we do not know anything about them. „ , ,^ ,^ ,, _, , , "The last ground is one of fact. Before I have aUuded to what are called legal grounds or alleaations that by legal operation the election is void. The last ground aUeges that there were rumors of bribery in procuringthe election of these gentlemen. The allega- tion of mere rumors of bribery is not sufficient unaccompanied with evidence, to require investigation at the hands of the Senate or of its comimttees. It is alleged m this me- morial that one State senator of New York is under indictment m that State for offering a bribe to a member of the house to vote in the Senatorial election. It is due to the Sen- ators holding the seats th at the committee should say that that mdictment is not for a «lt appearsfrom the Congressional Eecord, vol. xiij, part 1, page 76, that the motion that the com- mittee be discharged was agreed to December 13, 1881. 644 SENATE ELECTION CASES. bribe offered to vote for either one of the present Senators. It is due also to state that whUe we find by reports that have been sent to us and investigations had that there •were a great many scandals in connection with the Senatorial election in New York dur- ing the late session of the legislature, most of these scandals occurred before the two gen- tlemen now holding seats became even candidates before that body. "Therefore, sir, the committee, without going further into details, hold that the re- spective grounds alleged and all of them together are not sufficient to authorize fur- ther investigation, and do not make a case invalidating the election of the Senators from New York. We believe from all that is before us that the el actions were valid and ought to be so declared. We ask, therefore, that the committee be discharged from the far- ther consideration of the subject." T^BLE OF O^SES. Page. Kensey Johns ^. l',2 Uriah Tracy 3 Samuel Smith 4 James Lanman 5,6 AmhroseH. Sevier. 7-9 Roberto. Winthirop 10-12 Archibald Dixon 13-15 Samuel S.Phelps; 16-22 Jared W.Williams 23-25 Charles H. Bell 26-35 Henry W. Blair 36-47 Albert Gtallatln.. 57-67 Humphrey Marshall 68-72 Blount and Cooke.... 73 William Blount 74-78 John Smith 79-93 Stanley Oriswold 94 Jesse Bledsoe 95 Ephraim Bateman 96-98 Potter m. Bobbins 99-135 John M. Niles 136,137 James Shields (Illinois) 138-142 Yulee vs. Mallory. 143-147 Lyman Trumbull 148-154 James Harlan 155-163 Fitch and Bright, and Lane and McCarty..l64r-183 Simon Cameron ! 184r-186 James Shields (Minnesota) 187-192 Henry M. Bice 193,194 Expulsion of Senators 195-198 Louis T. Wigfall 199-201 WUleyandCariile 202-204 Stanton vs. Lane 205-212 TrustenPolk 213,214 Page. Waldo P. Johnson 215, 21S Jesse D. Bright 217-219 Benjamin Stark 220-233 Lazarus W. Powell 234-23S James F. Simmons...: 237-239 Fishback, Baxter, and Snow 240-24T Cutler and Smith, and Hahn 248-251 Segar and Underwood 238-263 ' John P. Stockton 264-279 David T. Patterson 271-274 Philip F.Thomas 275-281 Jones and Garland vs. McDonald and Bice. 282 Marvin »)«.Osborn 283,284 Hill and Miller, and Whiteley and Parrow.285-31L H.B. Bevels 312-31S Adelbert Ames 317-319 Hart w. Gilbert. 320-322. Eeynolds vs. Hamilton 323-325 George Goldthwaite 326-339 Norwood vs. Blodgett. 331-337 Ransom DS.Abbott 338-367 Pomeroy and Caldwell 368-385 Powell Clayton 386-422 James W. Patterson 423-425 The Louisiana Cases, 1873-'80. 426-553 Louis V. Bogy 554,555 Sykes vs. Spencer, and George E. Spencer..558-578 L. Q. C. Lamar 579,580 John T. Morgan 581 Corbin vs. Butler ; 582-605 La Payette Grover 606-614 Stanley Matthews 615-63<> John J. Ingalls 637-641 Lapham and Miller 642-644 645 IIS^DEX. Page. Abbott, Joseph C. ISee Ransom vs. Abbott.] , Acceptance of Election to Senate what constitutes (Robert C. Winthrop) ... 10 Admission of States, wtaen en- titled to Representation Minnesota (James Shields) 187 Ohio (case cited iu remarks of Mr. Toombs) 190 Tennesse (Blount and Cocke) , 73 Alabama Clay and Fitzpatrick, motion that names be stricken from list of Senators.. 195 'Clay, C. C, seat declared vacant 196 Fitzpatrick, Bei^amin, withdrawal from Senate 196 Alabama cases Goldthwaite, George 326 Morgan, John T 581 Sykes vs. Spencer, and Spencer 556 Ames, Adelbert case of. 317 report in 317 vote in 319 Appointment, power of governor to fill vacancy by. [See Va- cancies, &c.] Appointments list of, by governors of States 48 Arkansas entitled to representation in Congress after rebellion, when 282 provisional State government of 282 reorganized State government of, ddring rebellion 240 Sebastian and Mitchell, expelled from Senate 197 Arkansas cases Clayton, Powell 386 Pishbaek, Baxter, and Snow 240 Jones and Garland vs. McDonald and Rice 282 Sevier, Ambrose H 7 Xateman, Epbraim case of. ^ report in ^ ^ Baxter. [See Fishback, Baxteb, and Snow.] JBell, Charles HC. , 26 case of. 27 report in " views of minority in 29 vote in "^ mileage in. Benjamin, Jadah P. seat declared vacant Blair. Henry ^W. case of. ^" remarks by — Mr. Vest in 36 Mr. Hoar in 39 Mr. Pike in : 42 Mr. Edmunds in 44 196 Page. Blank votes Yulee vs. Mallory 143 Bledsoe, Jesse case of. 95 Blpdgett,Foster. [See Nokwood vs. Blodgktt.] Blount, IVilliam case of. 74 report in 76 vote in 77 Blonnt and Cocke case of '. 73 Bogy, licwis T. case of. ; 554 report in 555 Bragg, Thomas expelledfrom Senate 197 Breckinridge, John C. expelledfrom Senate 198 Bright, Jesse I>. case of 217 report in 218 vote in 219 Bright, Fitch and, Ac. [See Fitch AND BbIGHT, &C.] Brown, Albert G. seatdeclared vacant 196 Bntler, M. C. ■ [SeeCoEBiN vs. Btjtleb.] Caldwell, Alexande r. [See Pomebov AND Caldwell.] Cameron, Simon case of 184 report in.; 185 views of minority in 186 Candidate for Senate right of, to vote for himself in legislat- ure (Ephraiui Bateman) 96 Carlile, Willey and. [See Willey AND CABLILE.] > Chestnnt, James, Jr. expelled from Senate 197 Citizenship, Nine Years Gallatin, Albert 67 Revels, H. R 312 Shields, James 138 Clay, C. C. motion that name be stricken from list of Senators 195 seatdeclared vacant 196 Clayton. Powell case of ^^ report in 388 views of minority in 400 vote in 422 Clingman, Thomas li. expelled from Senate 197 Cocke and Blonnt case of. 73 Compensation of Abbott and Ransom 366 Bell, Charles H 34 Blodgett, Foster (Norwood vs. Blodgett) 336 Corbin andButler '. 605 647 648 INDEX. Page. Compensation of— Continued. Fialiback, Baxter and Snow 246 Hart, O. B. (Hart vs. Gilbert) 322 Hill and Miller, and Whitely and Far- row 3U Ingalls, John J 641 Manning, Thomas C. (The Louisiana Cases, 1873-'80) 653 Meriwether, David (Archibald Dixon) 15 Phelps, Samuel S 22 Pinohback, P. B. S. (The Louisana Cases, 1873-'80) 509 Potter, Eliaha K. (Potter vs. Bobbins) 99 Bay and McMillen (The Louisiana Cases, lS73-'80) 479 Sebastian, William K., unpaid accounts settled (expulsion of Senators) 195 Segar and Underwood [See Segar and Underwood] 578 Spencer, George E. (Sykes vs. Spencer; and Spencer) 578 Spofford and Kellogg (The Louisiana Cases, 1873-'80) 552 Sykes, Francis W. (Sykes vs. Spencer; and Spencer) : 574 Vickers, George (note) 338 Connectlcnt cases Lanman, James 5 ' Nil'es, John M 136 Tracy, Uriah 3 Corbin vs. Butler case of. ; 582 report in 586 views of minority in 603 compensation in 605 Cutler and Smltb, and Hatan Cutler and Smith 248 report in case of 249 Page. Expulsion Cases. J_Bee also Iitvesti- gation; Expulsion of Sena- tors.] ' for disloyalty — Bright, Jesse D 217 Johnson, Waldo P 215 Polk,Trusten 213 Powell, Lazarus W. 234 Stark,,Benjamin 220 Wigfall, Louis T. [see ateo Expulsion OF Senators] : 199 for exercising improper official influence over keads of Departments — Simmons, James F (.... 237 for high misdemeanor — Blount, William 74 for improper conduct — Patterson, James W 42S for participation in conspiracy of Aaron Burr- Smith, John 79 Expulsion of Senators. [SeeoJsoExi PULSION Cases.] expelled — Bragg, Thomas 197 Breckinridge, John 19S Chestnut, James, jr 197 Clingman, Thomas L 19T Hemphill, John .- 197 Hunter, Bobert M. T 197 Mason, James M A 197 Mitchell, Charles B 197 Nicholson, A. O. P 197 Sebastian, William K 197 Wigfall, LouisT 197 motion that names be stricken from list of Senators — Clay, C. C 195 INDEX. 649 Page. Fitcb aDd Bright, and I.ane and McCarty— Continued. Fitoh and Bright case— Continued. vote in I75 Lane andMeCarty case 175 report 176 views of minority 178 vote 182 Fitzpatrich, Benjamin motion that name be stricken from list of Senators 195 withdrawal from Senate 196 Florida entitled to representation in Congress after rebellion, when 283,320 Mallory , Stephen R. , seat declared vacant 196 Mallory and Yulee, motion that names be •stricken from list of Senators 195 ratification of fourteenth amendment by 283 Yulee, David L., withdrawal from Senate 196 Florida cases Hart™. Gilbert S20 Marvin vs. Osbom 283 Yulee vs. Mallory 143 Gallatin, Albert case of. 57 report of — select committee in 63 Committee on Elections in 64 vote in 64 Oarland, A. H. case of 282 Georgia Iverson, Alfred, withdrawal from Senate. 196 reorganized State government of, after rebellion 285 Toombs, Robert, seat declared vacant. 196 Oeorgia cases Hill and Miller, and Whiteley and Far- row. 285 Norwood OT. Blodgett 331 GUbert, Abijab. [See Hakt vs. Gil- BBKT.] Goldthwaite, George case of 326 report in 327 Governor power of, to appoint to fill vacancy [see Vacancy]. provisional, certificate of election by (H. B. Revels) 312 Government I State of ]j>uisiana (The Louisiana Cases, 1873-'80) *26 State of Mississippi in 1876 579 Griswold, Stanley case of....: Grover, la Fayette case of. ^8 report in ^^ views of Mr. Saulsbury in €09 Habn, Dlicbael. [See Cctlsb and Smith, and Hahn.] Hamilton, Morgan C. [See Bbynoi.ds vs. Hamilton.] Pnge> Harlan, James case of 155 remarks by — Mr. Bayard in 155 lyir. Seward in 156 report in 158 vote in 163 Hart vs. Gilbert case of. 320 report in 320 compensation of Mr. Hart in 322 Hempbill, Jobn expelled from Senate 197 Hearsay evidence in case of S. C. Pomeroy.'. 368 rejected (George E. Spencer) 55& Hill and Miller, and Wbiteley and Farroir case of. 285. credentials of — Mr. Hill, in 285 report on 286 views of minority on 28^ Mr. Miller, in 294 Hill and Miller, and Whiteley and Farrow 294 report on 295 views of minority on 306. vote in 311 compensation in 311 Hunter, Robert M. T. expelled from Senate 19T Illinois cases Shields, James 13S Trumbull. Lyman 148. Indiana body electing Messrs. Fitch and Bright was the legislature of. 164 Indiana cases Bright, Jesse D 217 Fitch and Bright, and Lane and McCarty 164 Ingalls, Jobn J, case of. 637 reportin 640 views of minority in 640 reimbursement of expenses in 641 Inhabitant of State Griswold, Stanley 91 Investigation. [See also Expulsion Cases.] not to be entered upon — on vague allegations of fraud (Simon Cameron), 184 without "speciiic charge and evidence adduced — Bogy, Lewis V 554 Marshall, Humphrey 68 of charges of bribery and corruption — Grover, La Fayette 606 ■Ingalls, John J. 637 Pomeroy and Caldwell 368 Spencer, George E .556,576 of charges of connection with supposed : fraudsin Louisiana election(Stan- ley Matthews) 615 €50 INDEX. Page. Investlgatloii— Continued, of legality of election (Lapham and Miller) 642 of testimony tending to impeaeh official conduct (Powell CSayton) 386 on allegation of fraud and extortion (Henry M.Eioe) 193 Iowa case Harlan, James 155 totalis, Kensey caseof > 1 report in 2 Jobnson, IPTaldo P. case of. • 215 report in 215 vote in 216 Jones and Oarland TS. McDonald and Rice caseof. 282 Kansas cases Ingalls, John J 637 Pomeroy and Caldwell 368 Stanton vs. Lane 205 Kellogrg, William P. [See The Loci- SIANA Cases, 1873-'80.] Kentncky Breckinridge, John C, expelled from Senate , 198 Kentucky cases Bledsoe, Jesse 95 Dixon, Archibald 13 Marshall. Humphrey 68 Powell, Lazarus W .\ 234 liamar, I<. Q. C. case of ' 579 liane and McCarty, *c. [See Fitch AND Bright, &c.] liane, Stanton vs. [See Stanton vs. LAnb.] I^anman, James case of , 5 report in 5 vote in 6 liaphain and Miller ' caseof. 642 report in 643 liCglslatnre Alabama — fraudulently elected, so represeiited (John T. Morgan) 581 which body was the, in 1872 (Sykes vs. Spencer) 556 Arkansas, body electing Messrs. Fish> back and Baxter was not the 240 *' chosen next preceding," &c., what is the (Norwood vs. Blodgett) 331 •election and qualifications of members of, may be inquired into by Sen- ate when — Goldthwaite, George 326 Hill and Miller, and Whiteley and Par- row 285 Sykes vs. Spencer 536 Spofford vs. Kellogg (The Louisiana Cases, 1873-'80) 427 Page, lieglslatare— Continued, first session of that " chosen next preced- ing," &o., entitled to elect. 323 fraudulently elected, so represented (John T. Morgan) 581 Indiana, body electing Messrs. Fitch and Bright was the 164 Iowa, body electing Mr. Harlan was not the ; 155 Louisiana, what was the legal, ftom 1873 to 1880 (The Louisiana Cases, 1873-'80) 426 majority of members chosen to one branch of, constitutes that branch (Cor- binvs. Butler) 582 members of, without certificates of elec- tion (Sykes vs. Spencer) 556 Bhode Island, body electing Mr. Bobbins ,wasthe , 99 Virginia, what was the,during rebellion 201. J52 Iicngptb of term of service nnder appointment by governor. [See ExpiEATiON.] IiOnlslana Benjamin, Judah P. ,seat declared vacant.. 196 reorganization of State government in, during rebellion..... 248 Slidell, John, withdrawal from Senate.... 196 liOnlslana cases, [See also The Lodi- SIANA CASES, lS73-'80.] Cutler and Smith, and Hahn 248 The Louisiana Cases, 1873-'80.. 426 McDonald, Alexander case of 28a McMUlen, 'William li. [See The Lou- isiana Cases, 1873-'80.i Majority of individual members of joint conr vention does not constitute leg- islature unless both houses are present as bodies (James Harlan) 155 of members composing two houses of legislature (Fitch and Bright, and Lane and McCatty) 164 of meTTibers chosen to one branch of leg- islature constitutes that branch (Corbin Vs. Butler).'. 582 of members-elect of legislature (Yulee vs.Mallory) 143 of quorum of each house of legislature (Lapham and Miller) 642 of legislature (Yulee vs. Mallory) 143 vote necessary in absence of law (John P.Stockton) 264 Mallory, Tulee vs. [See Yulee, vs. Mallory.] Mallory, Stephen R. motion that name be stricken from list of Senators 195 seat declared vacant 196 Manner of boldlng elections joint convention may regulate, in ab- senceof law 264 joint resolution sufficient legislation to regulate 143 INDEX. 651 aianning. Thomas C. [See The Lou- isiana Cases, 1873-'80.] Marr, Robert H. [See The Louisiana Cases, 187S-'80.] Marshall, Humphrey Page. c^ise of.. 68 report in gg asadopted in 71 vote in yi Marvin vs. Osborn case of. 283 Maryland case Smith, Samuel 4 Thomas, Philip F 275 Mason, James M. expelled from Senate 197 Massachusetts case Winthrop, Robert C 10 Matthews, Stanley ease of 615 report in 616 McCarty, l,ane and, Ac. [See FrrcH ANB Bright, &c.] Meriwether, David mileage and per diem to [see also Dixon, Archibald] 15 Mlleagre. [See Compensation.] Miller, H. V. M. [See Hill and JIil- ler, &c.] Miller, Warner. [See Lapham and Miller.] , Minnesota admission of 187 Minnesota cases Rice, Henry M 193 Shields, James 187 Mississippi Brown and Davis, seats declared vacant 196 Davis, Jefferson, motion that name be stricken from list of Senators 195 State government of, in 1876 579 Mississippi cases Ames, Adelbert 317 Lamar, L.Q.C 579 Revels,H. R 312 Missouri cases Bogy, Lewis V 554 Johnson, Waldo P 215 Polk,TruBten 213 Mitchell, Charles B. expelled from Senate 197 Mor^^an, John T. case of. 581 Sew Hampshire cases Bell, Charles H 26 Blair, Henry W 36 Patterson, James W 423 Williams, JaredW 23 STew Jersey cases Bateman, Ephraim , 96 Stockton, John P 264 New YorK case Lapham and Miller 642 Iiricholson, A. O. P. expelled from Senate. 197 Page. Niles, John M. case of. -136 report in 136 ITorth Carolina Clingman and Bragg expelled from Sen- ate .'. 197 North Carolina case Ransom vs. Abbott 338 Norwood vs. Blodgett case of! 331 reports in 333,335 compensation of Mr. Blodgett in 336 Oath modified, in case of H. V. M. Miller 285 qualifications of Philip F. Thomas for taking 275 resolution to modify, In case of David T. Patterson 271 Ohio admission of (case cited) 190 Ohio cases Griswold, Stanley 94 Matthews, Stanley 615 Smith, John 79 Oregon cases Grover, La Fayette 606 Stark, Benjamin 220 Osborn, Thomas W. caseof 283 Patterson, David T. caseof ' 271 report in 172 Patterson, James 'W, case of 423 Pennsylvania cases Cameron, Simon 184 Gallatin, Albert .'. 57 Per diem. [See Compensation.] Phelps, Samuel S. case of 16 report in... 17 views of minority in 18 vote in 22 compensation in 22 Pinchback, P. B. S. [See The Loui- siana Cases, 1873-80.] Plurality rule joint convention cannot establish, in ab- sence of law (John P. Stockton).. 264 Polk, Trusten case of. 213 report in 213 votein 213 Pomeroy and Caldwell investigations of — Caldwell's election in 1871 368 report on 371 Ponveroy's election in 1867 368 report on 369 • views of minority on 371 Pomeroy's connection with Senatorial election of 1873 S76 report on 378 views of minority on 382 652 INDEX. Page. Post facto laivs principle of, applicable to expulsion case of James F. Simmons 237 Potter vs. Rolitoins case of. 99 repoi*t in 102 views of minority in 113 vote in 101 compensation of Mr. Potter in .,. 101 Poivell, Ijazarus W. case of 234 remarks by Mr. Trumbull in 236 Prima facie right to seat Blodgett, Poster (Norwood vs. Blod- gett) 331 Pitch, Graham N. (Pitch and Bright, and Lane and McCarty) 164 Goldthwaite, George 326 Grover, La Fayette 606 Lamar, L.Q.C 679 Morgan, JohnT ; 581 Pinchback, P. B. S. (The Louisiana Cases, 1873-'80) 426 Bobbins, Asher (Potter vs. Bobbins) 99 Stark, Benjamin 220 Privilege question of (James Shields) 187 ^naliflcations citizenship (nine years) — Gallatin, Albert S7 Revels, H.E 312 Shields, James 138 ' holding oflftce — under United States (Stanton vs. Lane) 205 under authority in hostility to United States (David T. Patterson) 271 inhabitant of State — Ames, Adelbert 317 Griswold, Stanley 94 mental, investigation of (John M. Niles) 136 superadded by State (Lyman Trumbull) 148 to take prescribed oath — Patterson, David T 271 Thomas, Philip P 275 Question of privilege. [iSee Peivi- liEGE.] Ransom vs. Abbott credentials of— Mr. Abbott 338 report on 339 views of minority on 348 vote on 366 Mr. Ransom ' 366 compensation of 366 Ray, Jotan. [See The Louisiana Oasbs, 1873-'80.] Reimbursement. [See Compensa- tion.] Reorganization of State govern- ment after rebellion, of— Arkansas 24o Georgia 285 Louisiana..; 248 Res adjudicata Butler, M. C, decision on right to seat (Corbinrs. Butler) 582 Page, Res adjudicata — Continued. Pitch and Bright, and Lane and McCarty 164 Kellogg, William P., decision of Senate of November 30, 1877 (The Louisi- ana Cases, lS73-'80) 426,533 Pinchback, P.B. S., decision of Senate of March 8, 1876 (The Louisiana Cases, 1873-'80) 426,506 Spencer, George E., decision on right to seat (Sykes vs. Spencer) 554 Resignation what constitutes such as to vacate seat (Jesse Bledsoe) 95 Revels, H, R. ease of. 312 remarks by ' Mr. Vickers in 313 Mr. Scott in ,315 votein 313 Reynolds vs. Hamilton case of. 323 report in 324 Rtaode Island body electing Mr. Potter was the legis- lature of (Potter vs. Bobbins) 99 Rbode Island coses Potter i?s. Bobbins 99 Simmons, James P 237 Rice, Benjamin F. case of. 282 Rice, Henry M. case of. 193 report in 194 Robbins, Potter vs. [See Pottee vs. ROBBDfS.] Sebastian, IVilliam K. expelledfrom Senate 197 resolution of expulsion revoked and an- nulled (note) 195 unpaid accounts of, settled (note) 195 Segar and Undernrood case of 252 remarks by — Mr. Sumner in 253 Mr. Willeyin ,..: 253 Mr. Sherman in , 254 Mr. Doolittle in 255 compensation of — • Mr. Segarin 256 report ...... i 256 vote 257 Mr. Underwood in 257 reports 258,260 Senator right of; to vote in determining question of his own seat 264 Sevier, Ambrose H. case of. i 7 report in 8 vote in 9 Sbiclds, James (Illinois) case of... 138 report in 139 IKDEX. 653 Page. i^hiclds, .Tames (Minnibota) case of. X87 letter of Mr. Shields In 187 remarks by — Mr. Pughin Igg Mr. Crittenden in 189 Mr. Toombs in 190 Mr. Brown in 190 report in ; 191 compensation in 191 ^ilniinons, James F. case of. 237 report in 238 Slldell, John withdrawal from Senate. 196 Smith, Cntler and, &e, [See Cutlke AND Smith, &o.] • Smith, John case of. 79 report in 81 vote in 93 Smith, Samuel case of 4 Snow, William 1>. [See Fishback, Baxteb, and Snow.] Sonth Carolina Chestnut, James, jr., expelled from Sen- ate 197 Sonth Carolina case Corbin vs. Butler , 582 Spencer, Oeorge E. [See Sykes vs. Spbnceb; and Spencer.] SpoflTord, BCenry jf. [See The Loui- siana Oases, 1S73-'80.] Stanton vs. liane case of 205 report in 206 compensation of Mr. Stanton in 212 Stark, Benjamin case of. 220 report of— Committee on the Judiciary in 221 views of minority in 221 select committee in 226 views of minority in 233- vote in 233 State government of Tlrginia ^vhat was the, during rebellion Stockton, John P, case of., report in .*. vote in Sykes vs. Spencer; and Spencer Sykes vs. Spencer case report in views of minority in vote in compensation of Mr. Sykes in report on Spencer George E. (second investigation) report in reimbursement of expenses Tennessee admission of {Blount and Cocke) Nicholson, A. O. P. , expelled from Senate 202 264 265 270 556 658 562 574 574 676 577 578 73 197 Page. Tennessee cases Blount, William .'f. 74 Blount and Cocke '. 73 Patterson, David T 271 Texas entitled to representation in Congress after rebellion, when 323 Hemphill and Wigfall, expelled from Senate 197 resolution against right to representation in Congress 199 Texas cases Reynolds to. Hamilton 323 Wigfall, I/ouisT 199 The lionisiana Cases, lS73-'80 McMillenra. Pinchback (Marr and Eustis) MoMillen rs. Pinchback 483 report on credentials of 483 report on credentials of Pinchback... 485 views of minority on credentials of Pinchback 486 vote on admission of Pinchback 506 withdrawal of claim by McMillen 504 compensation of Pinchback 509 report on 509 vote on '. 512 Eustis, J. B. reports on credentials of. 505,508 vote on right to seat of 509 Marr, Bobert H. credentials of 505 Hay D». McMillen 427 report in '. 427 views of — Mr. Trumbull in 461 Mr. Morton in 470 Mr. Hillin 478 compensation of. 479 reports on 480,481 vote on 433 Spofford vs. Kellogg (Manning) Spofiford vs. Kellogg case of 512 reports in 515,538 views of minority in 519,549 compensation of. '. 552 Manning, Thomas O. credentials of. 552 compensation of. 553 Thomas, Philip F. case of 275 remarks by — ' Mr. Doolittle in 278 Mr. Sumner in 279 report in 276 vote in 277 Toombs, Robert seat declared vacant 196 Tracy, Uriah case of. : 3 Trambnll, liyman case of. 148 remarks by — _ Mr. Crittenden in 152 Mr. Pughin 154 report in „ 148 654 INDEX. Page. Vntlerwood. [See Segab and Undbk- WOOD.] Vacancies In Senate from Indiana, questioned 164 Kansas, questioned 205 Virginia, questioned 202 Vacancies, power of governor to appoint to fill BeU, C!harles H 26 Blair, Henry W 36 Dixon, Archibald 13 Johns, Kensey 1 Lanman, James 5 Phelps, Samuel S 16 Sevier, Ambrose H 7 Smith, Samuel 4 Tracy, Uriah 3 Williams, Jared W : 23 Winthrop, Robert C 10 Vermont case Phelps, Samuel S 16 Vlcliers, George compensation of (note) 338 Virginia Mason and Hunter expelled from Senate 197 what -was State government of, during rebellion 202,252 Virginia cases Segar and Underwood 252 WilleyandCarlile 202 Votes - when void (Ransom V5, Abbott) 338 'Wlilteley, Ricbai^l H. [See Htll AND Mtt.t.tch.,] Page^ Wlgfall, lionis T. case of. 199 remarks by — Mr. Foster in 199 Mr. Clingman in 201 expelled from Senate (Expulsion of Sen- ators) 197" Willey and CarlUe case of 202: remarks by — Mr. Bayard in 202: Mr. Saulsburyin 203 Mr. Trumbull in 20a vote in 202. Williams, Jared TV. case of...^. „ 23. reportiu 23 vote in ;. 25- Wintbrop, Robert C. case of. 10 report in 10 Witness before Senate committee arrested to answer for contempt 638 Vnlee, David Ia. motion that name be stricken from list of Senators 195- withdrawal from Senate 196. Tnlee vs. Hallory case of 143 report in 14S vote In 146 compensation of Mr. Tulee in „ 147 Date Due OEC 07 74 KF h976 A2 1885 Author U.S. Congress. Senate, tomm. on privileges & elections. Vol. "Title ...Compitation of Senate eleS^^ tion cases from 1789 to. .'■tV^J,^V miM wm ■-CxP' I M^ m ■t>- ■^'^^' ■•c./