102 CONGRESSIONAL RECORD. ~fARCH 18, 

divides the Senate, without regard to party at all; and, therefore,, I 

repeat tJ1at never in the history of this Government, perhaps never m 

the future, was there or will there ba so fair au opportunity to decide a great constitutional question by the light of rea.~on, devoid of passion and party prejudice. . . . Mr. President, I do not WISh to occupy the time of the Senate With 

saying more. I have opinions on this question that are the result of 

much reflection, of long study, and of no lit.tle reading. I can ver_y 

briefly state them to the Senate, and some time to-morrow, when 1t 

may suit the Senate to hear them, I shall be glad to do so. l'or the 

present, the Senator from Georgia [Mr. NoRWOOD] desiring to speak 

in the mornin(Y', I give way t-o him that he may move to adjourn. 

Mr. WEST.0 If the Senator from Georgia will allow me, I wish to 

offer a resolution that I should like to have read, with a view of having it printed and gettin(Y' it before the Senate to-morrow morning. 

The VICE-PRESIDENT. Does the Senator from Georgia yield the 

floor for that purpose Y 

Mr. NORWOOD. Yes, sir. 

COl\iMITTEE 0~ LEVEES OF THE l\IISSISSIPPI. 

Mr. WEST. I offer the following resolution: 

Resolved That the Select Committee on the Le'\'"ees of the Missis~ippi River be 

authorized to sit during tho recess, and to im'ostigate and r eport upon the condition 

of the levees of the Mississippi River ; also u pou the propriety of the Goverumen t of the United States assuming charge and control of the same, with a view to their 

completion and maintenance; and that they have power to employ a clerk, and 

that the expenses attending this investigation shall be paicl out of the contingent 

fund of the Senate, upon vouchers approved by the chairman of the select com- mittee aforesaid. 

I ask that the resolution lie on the table and be printed. 

The VICE-PRESIDENT. That order will be made, if there be no 

objection. Mr. NORWOOD. I move that the Senate do now adjourn. 

The motion wa-s agreed to; and (at four o'clock and twelve minutes p.m.) the Senate adjourned. 

IN THE SENATE. 

TUESDAY, Ma1·ch 18, 1873. 

Prayer by Rev. J. P. NEWMAN, D. D. _The journal of yesterday's 'proceedings was read and approYed. 

MISSOURI .SENATORIAL ELECTION. 

Mr. BOGY. I rise, Mr. President, to a question of privilege. 

The VICE-PRESIDENT. The Senator from .Missouri will proceed, 

if there be no objection. · Mr. BOGY. Yesterday, while absent from my seat here, and in the 

Supreme Court room, a memorial was presented from citizens of my 

State alleging that my election as a Senator of the United States from 

the ~tate of Missouri had been obtained by the use of improper means, 

by bribery and corruption. I feel it due to myself, as a Senator on this floor, and due also to my State, to detain the Senate. for a few 

moments to give a brief explaua,tion of this really imporFant question 

to me and to the State which I represent in part on this floor. 

I repeat, :Mr. President, tha,t I look upon a matter of this chara.cter, as developed in the discussion of the case of another gentleman, a member of this body, as a question of very great importance, affecting the character of every individual Senator on this :floor, and thereby 

striking at the very body itself. I have appreciated much the 

remarks that have been made by distinguished gentlemen here in 

regard to the high character this body should maintain before the 

country and before the world. I participate in those feelings myself, 

and I feel much humiliated that any portion of the people whom I 

represent upon this floor should p1a.ce me in the position which I now occupy by the presentation of this memorial. · I was elected a Senator from the State of Missouri, I think on the 

15th of January. It is true our contests in the West for this distinguished position, as is known to western Senators upon this floor, are always attended by beat and animation, and success is no easy 

matter. The contest in my State of course participated in a very high 

degree in this excitement. It has been stated very generally that 

money was used in that contest; but at no time was I or any of 

my distinguished competitors charged with having used any money. 

One person came in as a· candidate, of no political distinction, and ac- cording to a phrase which has been used upon this :floor, of no political status, a man of large fortune, who, it was stated, had made up 

his mind to buy a seat as a Senator from the State of 1\Iissoori. Immediately after the election this resolution was introduced in the 

l egislature : 

Whereas it has beeD reported that money has been used in the senatorial con- test: Therefore, Be it resolved, That a committee of five be appointed by thB speaker, with power to send for persons and papers, :md report to thi honse at as early a day as practicable if there has been money used to ad vance the interest of any of the senatorial 

aspirants. 

It dJd not connect me with tbis report, or any of my competitors, by name. Tlle ouject was, as will be made manifest in a few moments, 

to reach another individual who had aspired, but who really was not 

classifiell in our State as an a pirant for tbe Senate. This resolution 

was adopted. A committee was appointed consisting of five mem- bers. It will be seen in a moment bow it was composed and why it was thus composed, and consistecl of five of the most intellio-ent and 

worthy members of our legislature. After nearly one month, or perhaps fully one month-! am not prepared to state the oxact time-it 

made the lengthy report which I hold in my band, lengthy as to the 

testimony, but brief as to the mere report itself. I will read it, so that the CommitteQ on Privil~ges and Elections mn.y have the full 

understanding of the case as it is understood at home: 

MAJOlliTY REPORT. 

Mr. Speaker: Your special committee, to whom was referred boose resolution to inves~gate .certain reports that money bad been used in the seuatorial contest, ~ave mYestigated the same, and most respectfully beg leave to submit the followmgreport: 

Af~r a thoroup:~ ancl full inYestigation, giving the greatest latitude of inquiry 

allowmg all questions to be propounded that any member of the committee should see proper, and compelling witnesse~ to answer the same : First. Your committee find no evidence, either directly or indirectly, to crimi- nate the Senator.elect, Hon. L. V. BOGY, and we fully exonerate him. 

Secandly. We further find that Geor~<e P. Dorris, of Saint Louis, did attempt to bribe two members of t~s general assembly, by the offer of 1,000 each, to wit, Hon. ,V. S. Pope, of Wnght~ and Hon. Charles H. Morgan, of Barton, to induce 

them to vote for him (Georp;e P. Dorris) in the democrntic caucus for Unitetl 

States Senator ; and we also find that said Dorris placed money in the hands of 

other p~es_, who ar~ not memb.ers of this. legislature, to advance his (George P. Dorns's) mterest m the electiOn for Umted States Senator. \Ve find no evidence which, directly or indirectly, criminates in any manner whatever eit!Jer Hon . .John S. Phelps, Francis P. Blair, jr., .John B. Henderson, Thomas L. An- derson, Geor,ge G. Vest, General Cockrell, General Crnig, Thomas C. P..evnolds, James I. Birch, William A. Hall, Governor Silas Woodson, William B. Naptou, A. W. Slayback, Nathan Bray, or Norman J. Colman, and we fully exonerate them from such charges. 

The gentlemen whose names I have just read were not all candidates, but their names ha.d been mentioned and voted for. 

Thirdly. We find from the evidence that no member of this assemblv receivefl, 

directly or indirectly, any money or consideration to influence his vote in any man- ner whatsoever in tho I!Anatorial contest. Fourthly. For further facts, we refer you to the evidence herewith transmit tell to the house, 

whlch I hold in my hand. This report is signed by l\fr. Newmn.n, 

who wn.s the mover of the resolution in the house; by Mr. Bell, representative from the city of Saint Louis; by 1\Ir. Walker, a repre entative from the connty of Howard, one of the olclest and weaU.biest, 

and, I might use the expression, most moral counties in the State; 

n,nd by Mr. Sorrell, from the county of Maries. With this there was a minority report signed by Mr. Headlee, the only republican on tbt} 

committee. This minority report, which I will not read in full, as it 

would take too much time, contains these expressions : · 

And it al'IO appears from the testimony taken before your committee tbnt a large sum of money, to wit, the snm of 15,000, was brought to J efferson Citv 

shortly prior to the election of Senator as aforesaid, by one Thomas Dorris, and that a consiuorable portion of that amount was used, or offered to be used, to advance 

the interest of some canilidate for the office of Unitod States Senator; and that 

the t.estimony, in part, goes to show that said money was intended to advance the 

claims of one George P. Dorris, and, in part·, goes to e:bow that it was designed to bo used to a.tJvance the claims of L. V. BOGY. That on this issue the testimony is not satisfactory, and the undersigned states that, against his consent, a majority 

of said committee decided, on the 8th of February, 1873, to close the clof!rs against 

further investigation by said committee, anu make report to this bouse, by r ew=mu of which the undersi~ed was unable to obtain testimony clearly sbowing by 

whom saicl $15,000 was furnished or for the advancement of whose election it was intended and partly used. 

This minority report being t.hns made I felt it my duty then to 

address to the legislature the fqllowiu~ letter, which I find in the 

memorial itself, which has been sent to tne Senate: 

• JEFFERsos CITY, FebruanJ 17, 1873. 

The following communication from Mr. BOGY, Senator-elect, was read to the 

bouse: 

DEAR Srn: I feel it to be a duty both to the legislature and to myself, and, indeed; I may say to the State, that I should no longer maintain the silence which 

ha1:1 np to this time been observed by mo in relation to the charges of bribery anrl 

corruption in connection with the election of United States Senat.or. I was at Jefferson City at the time the resolution was introduced in the house, it boiug my intention to spend some G.a:r,s bore, to mako an examination into tho conflition of 

the" swamp-land question,' in which the southeastern counties are very deeply 

interested, I being anxious to pay back to this portion of the St,ate a debt of grati- tude for the strong support¢. ven to me by the members from that section. I desirell to get this information to enable me to do something in Congress to clear up this 

(to tllat section of the State) most important question. As soon as I was informed of the introdution of this resolution, I immediately 

determined to leave Jefferson City so that the committee should be at perfect liberty, so far as I was personally concerned, to make such inYestigation as it mi~ht 

ueem proper, and due to the legislature and to myself, and leaving no one to I·ep- r('sent me before this committee. · From that day to this I ha·,re been passive, excepting the expression of the wish 

that yon, as speaker, should appoint a committee on which none of my political 

friends should ])e placed. The committee you selected I think was jurlicious. It was composecl of two members who Yoted for General Blair, one for GoYernor 

Phelps, ono republican, and one (Mr. Walker) who voted for me on the last ballot, 

after his first choice, Judge Napton, was dro~pcd. 

With this committee I was and am yet sati. fled. I sent them word by telegram 

that if the committee, or any member of it, desired my presence anil. my testi- mony, I would at once attend. This committee has made a report, signed by four out of five of its members, in which I am completely :md entirely mmncrated. 1f the testimony which has appeared in the papers be correct. mHl I have no other 

knowledge of it, it must certainly be plain·, beyond a doubt, to any fair and impar- tial man, that not a. word of testimony was given before this committee implicating me in the charges so freely and wantonly made by my political enemies. Never- theless, a member of this committee made a minority report, in which, by insinuations and the magnifying of unimportant facts and trinal occurrences, and the r elating of i£11e talk and street-rnntors, and connecting me with the doiugs anu sayings of ot.her parties with whom I ball no connection whatever, during t be canvass for Senator, an effort is made to make it appear that it m:ty be that my election was influenced by the use of money. 'l'ho two leading r epublican papers of Saint Louis say the same thing, and the 
1873. CONGRESSIONAL RECORD. 103 

Missonri Republican, with singnlal' personal malevolence, also makes the same charg9. A enator from this great a.ncl proud Stat-e, ho;etoforo represented in the Senate 

of the UnitodSt.ates by a long list of diRtin;<nisheu characters, should be irreproachable and abo•e suspicion. And as I know that thcro li•es not a human being on earth who can truthfully say that I app1·oachotl him in an improper manner to get 

his support for Senator, and as I deny all combinations of any kind whatever w1th 

any ono of tho diftcrent persons wlwso names have been mentioned in connection 

witlt tho place of Senator, 1 desire that an opportnnit.y be given to every one who 

may know any fact in connection with these charges to come forward and make 

his Rtatemcnt. 

If I may be allowed, I will only nsk one condition, tl1at this be done speedily, 

and limited to this week, as it will soon be my duty to proceed to 'Va hington 

City, to attend the meeting of the Senate usual at the inauguration of the President, for t-he confirmation of Cabinet appointments. It ill due to a sovereign St.ate that on an occasion like this it should bo folly rep- ro ·en ted in the Senate, anfl it is for this reason, anti no no other, that I desire the inYesti~ation to he clo. ed at an ea-rly day. Any person who acted as my frientl 

during the canvass will at-tend a.':! soon as notified, and I shall waive all question 

about tho ri~ht of the committee to examine my bank-account-ca-shier or president of any bank with which I have <1one business. 

Will you, Mr. Speaker, have this communication read to the house, so that it 

may take such action as it may deem proper at an early day 1 

I am, with great respect-, yours, very truly, LEWIS V. BOGY. 

lion. Mr. MCILHA...'<EY, 

Speaker of the House of Representatives. 

This letter, I will remark to the Senate, became necessary in con- sequence of the statement contained in the report of the miuority of 

this committee, in which Mr. Headlee says: 

That on this issueIn relation to Dorristhe testimony is not satisfactory, and the nndcrsi~ed stat-es that, a~ainst llis con- sent, a majority of sairl committee decided, on the 8th of February, 18'13, to close the 

doors against further invosti~ation by said committee. 

Mr. Dorris had never been examined, because from the time the 

committee was raised he could not be found. He had left his home 

in Saint Louis to attend, as it was reported, to his private business, aud 

consequently was not to be found by the sergeant-at-arms. About 

tbe time the report was made he returned to his borne. As soon as the reports were made I went to Jefferson City and asked tho legislature to re-open the investigation, so that Mr. Dorris might be examined, 

and also that my bank-account, that bad never been examinea before, 

should also be examined. The investigation Vi:M re-opened, and l\Ir. 

Dorris was examined, and my bank-accounts were examine<l for 

months prior to the election and for a long time afterward. I was en- abled to trace not only the amount of money that I paid, but every 

dollar to the person and the object for which money bad been paid 

by me. The committeo thereupon made another report, re-affirming 

their first report, and asked to IJe discharged. That report was unanimous, and it was adopted by the legislature. 'fhjs is the second 

report of the committee: 

Mr. Speaker: Your special committee of senatorial investigation, to whom were recommitted the majority aml miuorir.y reports of same, ha•o oxami.nefl the following witnesses: E. C. Brr.ck, S. G. Kitchen, ancl George 1'. Dorris. Your com- mittee fincl no evidence to change theil· former reports. 

Respectfully submitted. HENRY NEWMAN. 

JQH, WALKER. 

NIUHOLdS :1!. llELL. :E . .T. SOUHELL. 

S. W. HEADLEE. 

Four democrats and one republican (Mr. Headlee) signed tbis re- port. It wa-s submitted to the house. A vote wa.s taken, aud the 

majority report was adopted by a vote of 61 to 2'2. This resolution 

exculpating me was then passed: 

Mr. Chandler offered the following resolution: 

Whereas the special committee appointed by the bouse to investigate the c har~es 

of corruption and bribery of members of the twenty-seventh general assembly by 

cnudi<lates for the otlice of United States Senator in the late senatorial election, 

have made a thorough ancl searching examination of said charges; and 

Whereas said investigation has failed to connect the Senator-elect, Hon. LEWIS V. BOGY, with any attempt to corrupt or bribe any member of this assembly to his support in said election: Therefore, 

Resolved, That it is the sense of this bouse that said in•esti~ation fully exoner- ates Ron. LE\VIS V. TIOGY from all snspi<Jion of having used any COITnpt means to secure his election to the distinguished office of United States Senat.or, and that our confidence in his purity and honesty is unimpaired. Ilesolvedju.rther, That a ·copy of these resolutions be transmitted by the clerk of 

this house to each of our Senators in Con~rcss, and a copy to the President of tho 

Senate, with tl!o request the same be laiu oefore that body. 

Tbis was adopted by a vote of sixty-o<ld to twenty-odd, and was laid by yourself, sir, some time ago, before the Senate. 

This matter was then thought to be ended. I bad left the city of 

Jefferson for my home. Some time afterwaru I heard of an effort 

being made, that the republican members were getting up an outside memorial which has at last found its way to t-his body. I fnrtbermore hea,rcl at the timo that the gentleman who bad signed the 

report, Mr. Headlee, refused to sjgn that memorial, as it was his duty 

to refuse, as be bad joined in the report which bad been made before 

by the committee; nevertheless, I saw :::fterward that he aduressed a letter to the Senator from India,na, who is chairman of the Committee on Privileges and Elections, Etating that be had not signed 

tbat memorial because he was absent from the city of Jefferson. Be 

that as it may, my information was different. Of course I do not 

know of my own know ledge whether my information be correct or not. 

Now, sir, this question comes up in this bo"dy. A memorial, which 

I will not detain the Senate to read, couched in very general terms, is 

pre._ en t-ed, not asserting that the memorialist.s can prove anyt!Jing, but 

simply that tbe investigation was not sufficient, that the legislature 

diu not give them sufficient opportunity, and that a resolution offered 

by a certain member of that legislature was voted down a,ncl another one was adopted. These things may he, aud I presume are, all true. 

Tho democrats bad tho majority in the legislature, and tbey believed 

that their resolution was l:mfficient, as it certainly was. Now, Mr. Presiuent, this mattet· assumes an aspect of great im- portune~. Here is a State with as bright a record as any State in tho 

Union, wbose escutcheon is g,s clear of stain as that of any sister State, 

and which bas never been charged, in all its great political ooritests 

for tho fifty years past, with anything that at all indicated corruption. 

Here is a legislature wbere a person, as was reported, went with a view of buying his election. It resisted all the temptations presented 

to it, a.nd the gentleman obtained but one vote in the cancns, and 

that tbo vote of an hone t man, an old farmer from one of our distant 

counties, who vot.e<l for him because be had known him for years. 

There has been no charge of corruption made against the man who 

voted for Mr. Dorris. Here is a legislature whlcll was beyond the 

reach of improper influence, and which, as soon as it was reported that 

money had been nseu, at once a{lopteu a resolution of investigation. 

Tho committee was compose<l, as I state in my letter, of men divided 

among the different parties, excepting that my own friends were not 

represented upon that committee. _That committee sat for about one month, and produced, as you will see, sir, this large book of testimony, 

whicll amounts to nothing at all, and is mere trrulh. Every man in 

tho city of Jefferson, every dead-beat, every loafer, everybody that was supposed to know anything, was examined. I returned to my own home, attended to my private business, and let them do as tbey 

pleased, being represented in no shape, way, or form before that com- mittee. Nevertheless, the matter comes before this body at this day; 

and it has come to this, that no Senator on this floor is safe if vagne 

charges of this kind can bo presentecl by A B and C D, and entertained by this body. Arc we to be tbns exposed and at the mercy 

of bad men and a press disposed to vilify every public man f 

I do not, Mr. President, seo how tho matter can be avoided, or a remedy for the evil; but, nuuer the circnmstances, I think I may well 

claim as a right, dne to me and to my State, that the Committee on Privileges and Elections should at once take tbis matter up and make a report to this bouy. l\Iy legislature is yet in session. It has given no evidence wbat.ever of a disposition to shield anybody or cover up 

corrupt.ion, tho say-so of theso men to the contrary. If there ha.'i 

been any corruption practiced, them is the body to investigate that 

matter, and we aro uot hero, while it is in session, authorizecl to go 

back of a. report made by a committee of its own body, aud which is 

sustained by a large ruajorHy. Can the Senate of the United States 

do this Y I tbiuk not. I may bo sensitive on a matter of this kind, 

because if I ba,ve any reputation at all, I may say, without auy self- exaltation, it is that of a plain and honest man, though an ardent 

politician-perhaps t-oo much so; but I havo never been charged heretofore with anything liko corruption in any of my political acts. 

I hope that the committee ~ill take np this matter soon and make 

their report, as I ask for tho fullest investigation. I do not like to be 

held np before the nation as a. ma11 wbo obtained his seat in this dis- tingnished holly improperly. I cauuot u:ffurd to occnpy tbat position 

for the next eight or nino months. Neither can my State afford to 

occupy that position. I cannot vote to expel or retain auy member 

of this body wllile I myself am a subject of investigation. I hope 

the Senate will sustain me in asking to be excused from voting on all 

such questions. · I repeat, Mr. President, that I desire the committee to act speedily ant.l thoroughly. 

AGRICULTURAL REPORT. 

Mr. ANTHONY. I submit the following resolution: 

Resolt,cd, That tho Commissioner of .Agriculture be directe<1 to communicate to· the Senate his last annual report, with tue accompanying papers. 

Mr. SHERMAN. Is that accor(ling to Jaw f 

Mr. ANTHONY. It shoulrl be commnnicated to Congress, but was· not commnnicatecl at the last session of Congress. 

hlr. SHERMAN. Is it right ior the Senate of the Unit-eel States to 

call upon an officer of the Government of the United States to com- municate a report which, by law, should be communicatet.l to Congress 1 

l\Ir. ANTHONY. There is no law a.gaiust its being communicated 

to the Senate. The object is to have the report printed; and apprehending that the strict constructionists, who will not allow us to present a petition, might object to our printing a report that was presented to Con?ress, I offered this resolution, that the report might be 

presented to tne Senate and that we mi~ht order the usual number 

to be printed. It will be a very great incon-v-enience to that department of the public service if t~e report is not printed. I thought I 

should accommodate myself to the views of my friend from Ohio if I 

proposed to direct that the report be commnnicated to the Senate. _Mr. SHERUAN. I will not make any objection; perhaps it would 

be impolite to do so. The officer can do it if he chooses, but he is 

under no obli~ation to do it. 

Mr. ANTHONY. The resolution reads" directed." 

Mr. SHER fAN. We have no power to direct him. 

Mr. FERRY, of Connecticut. I objcnt to its consideration to-day .. Mr. ANTHONY. The Commissioner bas no object.ion to doing it. 

Mr. FERRY, of Connecticut-. I object to the whole thing. 

The VICE-PRESIDE JT. Tho S.euator from Connecticut objects to 

the consideration of the resolutioJ.!, and it will lie over. 
104 CONGRESSIONAL RECORD. ~~ARCH 18, 

ELECTION OF SENATOR CALDWELL. 

The Senate resumed the consid~ration of the following resolution; 

submitted l>y Mr. MORTON ou the 6th instant: 

R esolved, That ALEX..U."DER CALDWELL was not dnly and legally elected to a se.at in the Senate of the United States by the legislature of the State of Kansas. 

Mr. NORWOOD. Mr. President, it mi~ht be supposed from the manner in which the honorable Senator from Ohio [Mr. THURMAN] 

yesterday gave me the floor for this morning, that I had made preparation upon this question; but I beg to say that, unfortunately, such 

is not the case. I wish I had prepared myself in some degree proportionate to the importance of this question; but I have not been 

able so to do. Having been a member, however, of an investigating 

committee which had under consideration similar legal questions, if 

not similar facts, to those involved in this case, I desire to express my 

views upon the legal points at this time; and if the other case should 

arise, there will then be nothing for me to do but to discuss the facts. 

Unfortunately for us and for our guidance, we are left without a precedent in authority; but, fortunately for the country and for 

the honor of the American namo, we have also been left without a parallel in its facts. We are, therefore, remitted to reason and con- science. We have no other guides or lights by which we can be directed in coming to a proper conclusion in the final determination of 

this case. It is hardly necessary for me to go into the cases that have been 

cited in order to show that we are without a precedent, but I will 

make a casual allusion to some of them. 

The case of Potter against Robbins, which stands, in proceedings of 

this kind, like the case of Shelley in matters of real estate, and is 

always referred to as a standard case, is, in my judgment, not applicable. That was a case in which Mr. Robbins, in January, 1833, was elected by a legislature of Rhode Island s member of this body, and, 

in October, 1833, another legislature elected Mr. Potter. The question came before the Senate upon this state of facts. Both Senators pre- sentecl their credentials, and the question had to be decided primarily, 

a.nd mainly, which was the legislature; and that was in fact the only 

direct question involved in that case. The Senate held that the legislature that acted in January, 1833, and elected Mr. Robbins, was the 

constitutional body, and upon that finding seated Mr. Robbins, and 

the contest there ended. It is t-rue that in that case there is much 

learning set forth by the committee pro and con, first by the majority, 

and then by the minority, Mr. Silas Wright, in submitting his views; 

but that case has nothing to do with the facts in this, and however 

much that learning may be nseti for the purpose of elucidation or illustration, we can make uo application of it here except in the same way. There was no charge of any misconduct. on the part of either 

legisl ture or any mem l>er of either legislature, and, therefore, I dismiss that case as having no bearing upon this. The case of Mallory against Yulee, which has been cited by some Senators, was simply a question as to whether twenty-nine votes cast as blanks should be counted. There was no charge of bribery, no charge of corruption. It was simply a legal question as to what was the effect of votes cast in that way. The case of Mr. CAMERON, in 1857, approaches nearer to the facts of 

this case than any other that we have on record; but still that has no application to this. The report of the committee, and the decision of 

the Senate on the report of the committee, was simply this: There 

being a vague charge of corruption on the part of Mr. CAMERON, or of the members of the legislature, or both, and there being no facts 

given, tho Senate merely resolved that it would not send out a roving 

commission to hunt up the facts, which, if they existed, it was the duty 

of that legislature to investigate and bring to the knowledge of the 

Senate. In other words, the Senate simply refused to convert itself 

into a detective officer. 

So that, as I said, Mr. President, we are without a precedent, and we have no guide in this case except our own reasc,n and our own consciences. We are the jurors and the judges to determine, first, 

what are the facts, and then, what is the law applicable to those 

facts. In doing this, it is of the utmost importance that we bear in 

mind the single issue that is presented for our consideration. That is 

important in the investigation of all cases, and is especially important in the investigation of judicial cases. We are now acting as judges. Many collateral issues, according to my judgment at least, 

have been brought into this discussion; many illustrations by way 

of argument have been produced, and they are calculated to ponfose 

us, to lead us astray, to draw us from that straigilt and narrow path 

which we should travel, and which, if we do not t1·avel, like Pilgrim, we shall on ,the one hand sink in the Slough of Despond, or, on the 

other, get enchained in the Castle of Despair. We mnst not allow our 

judgments to be affected by t.hese sido issues in determining this great 

question. It is a great, fundamental, constitutional question, that 

lies lleep and dark at the very base of our Government. It is to my 

mind one of the most important questions 1lhat the Senate ha.f? ever been called upon to consider. And that is my apology for rising to a~dress the Senate. I believe it to be the duty of every Senator on this floor who has a conviction on this subject to express it. .As the 

Senator from New York [1\h. Co~KLING] said on yesterday, we are a bench of judges in consultation; and I shall be happy to hear the 

views of any Senator, however briefly they may be expressed. 

l have said that colla.teral iS'Sues have been presented here, and I now propose to get rid of them. before I proceed to the main question. 

The first fahle issue we have presented to us is the <lan,•er to our system of government, and especially to the rights of the.::> States if 

the. Senate should exercise the power which is called for by the re'solotwn that has been reported by the Committee on Privileges and 

Elections. We are called upon to hesitate, because there is dancre r ahead u we exercise that power. Well, sir, as I apprehend, there ~e 

dangers on either hand. There are dangers if we do not exercise that 

power, and there are dangers of equal import if we do exercise it. 

Bot what of that Y What have our apprehensions to do with our judgment? I repeat, we are jndges. Wha.t would any Senator on this fl.oor say of a judge on the bench who, instead of being guided 

by authority and by law, should consult his apprehensions of danrrer 

to come Y What would he think of a judge who would stop to c~n­ sider what the e1fect of his ruling might be upon himself in some future case, or upon a friend whose interests might be involved in a like case f Sir, no pure judge will allow such considerations to shape 

his judgment. As a judge he must pronounce the law. And so with us ; no party considerations should influence us; no da ngers to a minority should enter into our consideration ; no probable change 

of political power in the future should influence our determination. 

We are here to say what is the Jaw on the state offa-cts presentell by 

the committee, and we have no right to consider consequences, political or personal. 

Dangers are around us. If we adopt the resolution of the committee, then it may be possible that in some future question like this, in 

high political excitement, some Senator might be unlawfully deprived 

of his seat. But if, on the other band, we decide that that resolution 

is wrong, then the Senate of the United States itself may become the 

refuge of scoundrels, a sanctuary for criminals. 

If in the case of the judge upon the bench the law works a hardship, 

it is for the legislator~ to correct the evil. In this case, if tho law as we may lay it down endangers State rights or works evil to the Senate, then it is in the power of tile people, through their legislatures, 

three-fourths of them concurring, to adopt such amendments to the 

Constitution as will correct the evil. · Therefore, Mr. President, I say I do not stop to consider what are the dangers surrounding us. I am looking simply to the question of 

law as my judgment conceives it, a.nd I intend upon that judgment to 

cast my vote, shutting. out of view all apprehended dangers. 

Another collateral matter is raised by an interrogatory propounded 

the other day by·the Senator from Pennsylvania [Mr. ScoTT] to the 

Senator from Missouri, [Mr. ScHURz,] when he was addressing the 

Senate. The question was this, as I rerneml>er, and if I l>e iu fault I 

hope the Senator from Pennsylvania will correct me: When the Senator from Missouri was discussing tho power of the Honse of Representatives to investigate the acts of the electors of the members of 

that branch of Congress, the Senator from Pennsylvania asked him 

whether a committee of the House of Representatives, or the House 

itself, could investigate the fact that an elector for a member of the 

Honse had procured ilis naturalization-papers by bribing a member of the court. What bearing has that upon this case' It has none, 

and yet it is calculated to mislead, unless we understand the import 

of the question; and I now propose to show tile parallel between the case jmt by the Senator from Pennsylvania and t.he case of an elector 

of a Senator to this body. The House of Representatives canuot investigate that question, and why f The action of tile court in granting the naturalization-papers is :1 judgment of that court. A petition 

is presented by a party desiring to be naturalized ; the facts are brought to the know ledge of the court; tho court passes upon tue fact,s, 

and that becomes a judgment of the court; and it ia a very well-settled 

principle of law that yon cannot in any collateral proceeding at.tack 

the judgment of a court. This rnle would hold in the investigation 

which would be instituted by the House of Representatives. nut now comes the para.llel. When that elector bas been naturalized and he 

casts his vote, then the Honse of Representatives may inquire whether that vote was obtained by bribery. They cannot go l>ack of bis 

naturalization ; but when he becomes an elector, and stands upon the same footing as a native-born citizen, you can investigate the fact as to whether he has been bribed, just as in the case of onenative-IJorn. 

And so as to an elector for a Senator. While you cannot go back of 

the act that makes that man an elector in the legislature, yet when 

he becomes an elector, when he is seated as a member of the legisln.-

ture of the State by the actiou of that legislature, then his act as an elector may be the subject of investigation, and you ruay inquire in 

that case, as in the case of an elector of a member of the popular 

branch of Congress, at'! to. whether his vote has been induced by 

bribery. 

Another issue that has been raised is as to whether the Senate 

would have tho power to investigate a case and to vacate a eat if a 

Senator had secured his seat by a promise of office to a friend, or by a promise of his influence to secure an office. 

Mr. SCOTT. Before my friend leaves the other point, as he called 

my attention to it, with his permission I will say to him that he ap· prehended only in part the purpose of the question which I put to tho . Senator from M~souri . While we agree that the judgment of t,he 

court cannot be inquired intQ for the purpose of setting aside the right 

of the naturalized citizen, tho Senator forgets that my question llad 

in it two elements. The report of the committee took the ground 

that one bribed elector would set aside the whole el ection; antl my 

question went to the point whether, even if yon conlll inquire into the 

judgment and show that one of three judges had been bribed, you 
. . . ~ .•. · 

1873. CONGRESS! NAL RECORD. 105 

could set af:!iue thP. judgment; intending to apply it to the argument 

of the committee, tliat proof that one elector had been bribed in a legislature would set aside an election although there was a majority 

of twent.y-five. 

Mr. NORWOOD. :Mr. President, I can say to the Senator from 

P en nsylvania that I am in accord with him upon the point that the 

bribinu of one voter, ifthat does not secure the election, does not avoid 

it. I ;oppose that is an answer to his question. 

Mr. SCOTT. Then we are in entire accord. 

Mr. NORWOOD. In entire accord upon that point. I am glad to 

bear tbe Senator ay we :ue in entire accord, because I take the position that., if the election of a Senator is secured by bribed votes, that 

would vacate his s~;~at. 

Mr. SCOTT. That is another point, on which we are not in accord. 

Mr. NORWOOD. I wanted to know whether we agreed on that 

point. 

Mr. SCOTT. No, sir. 

Mr. NORWOOD. Then, Mr. President, the question that I was on when interrupted by the Senator f.rom ·Pennsylvania was as to 

whether we can go into an investigation of a case where influence 

bas been promised to a part.y to secure his vote. I say again, that has 

nothing to do with this case. The simple question here is, and it is 

important for u~ to bear it in mind, can we vacate a seat obtained by 

bribery t It is unnecessary for us to go into the investigation of other 

questions or the cons.iueration of other facts. When they arise it will 

be proper for the Senate to consider them; but how unreasonable it is 

for a bench of judges, when they are considering a question made by a record, and but one question involved in tJJ,at record, to be leu off on 

outside issues. Another question bas been raised here as tO-the power of a legislatnro to repeal an act which has been seGnred by bribery. I differ 

'vitb many oftheSenators whohavespokenon tbispoint. I consider 

the question immaterial here; but still, as it has been brougbt in 

and ha.s been discus ed, I propose briefly to submit my views upon it. 

.Au act of the legislature that baa been procured by bribery can be 

repealed byasubsequent legislatnresofarast.oaffcct therightsof those 

who procured the passage of t.he act by tho bribery. If tho rights of 

third parties iQtervene, the case is different; but if the qnQ.'ltion is 

confined to the parties who procured the passage of tue act, (on the 

principle of law that no man can tn,ko advantage of his own wrong, 

and the further principle that he bas procured the passage of the act 

b.v tile commission of a crime,) that act is not valid, and it only re- maius for ally subsequent legislature so to declare. The celebrated case of Fletcber t•s. Peck, arising out of the Yazoo 

frauds in the State of Georgia, bas been relied npon as authority on the other side, to allow that a subsequent legislnture cannot repeal an act that has been procured by corruption and bribery. 

I respectfully submit to the Senate that the case of Fletcher vs. Peck does not bear out that enunciation. The. case was, briefly 

Atated, this : A, B, and others, who procured tho passage of the act 

by bribery, obtained tho grant of lttnds, and. immediately ~fter secur- iug the grant ma<1e a transfer to other parties, who were mnocent of 

the bribery, and, indeed, not cognizant of the fact. The question 

tllen arose before the courts as to whether tho rights of these third 

parties, to whom the transfer of these lands had heeu ruaue by the 

parties who had bribeu the legislature, could be affected hy a repcaliug act passed, over a year afterward, by a subsequent legislature ; 

a11d the Supreme Court held that it could not be, and pnt it expressly ou the ground that the repealing act would be in violation of that 

clanse of the Const.it.ution of the United States which forbids any 

State to impair the obligation of a contract. Now, as between the 

original parties to the fi·aud, I call the attention of the Senate to 

what the court say, the decision being delivered by Chief Justice 

:Marshall : 

In this cas6 the legislature may have bad ample proof that the original ~ant wa,'l obtained by practices which can never be too much r eprobated, and wh1ch ·would 

have jl.£8tijicd its abrogation so far as respected those to whom the crime was imputabla. But the grant,. when isRued, conveyed an estate in fee·simple to tho ~an tee, clothed with all the solemnities which law can bestow. This estato was tranRfcr- able; and those who purchased parts of it were not stained by that guilt which infected the original transaction.-6 Oranch's Reports, pages 134, 135. 

And so tho court go on for a page more upon that line of remarks, auu Mr. Justice Johnson, who dissented froru the decision of the court, 

dissents upon the ground that the court placed its decision upon the 

cla.uso in tile Constitution which forbids a State to impair the . ob- ligation of a contract. Now, Mr. President, I propose to submit a i'ew remarks upon the 

main question involved in this case, to wit, what is the effect of 

bribery upon tbe election of Mr. CALDWELL f I assume now that the 

bribery, if it exists, procnrod the election of Mr. CALDWELL, and not 

that there was only one vote bribed or any number less than the 

number of his majority. I say, Mr. Presiuent, that this election is void, 

because, if it wa.s procured by bribery, it ·was not an election. I state 

the proposition that, if it was procured by bribery, it was not an elec- tion ; aud now, in considering that question, it becomes necessary for 

me to go into a consiueration for a few minutes of the nature of a legislature acting as electors of a Senator of the United States. Iu 

what capacity do they aet 'i .Are they acting as a legislature 'i Is the 

Sliate acting in her sovereign capacity 'l When a. legislature meets 

and resolves itself into a body for tho election of a Sena.t,or, in what 

capacity are those men act.ing '? If they are actin~ as a le.'.!;islat.nre, then they ru:e passillg a law, fur a legislature i~:~ a. booy for tile c.mactment of laws. Dut is the election of a Seua.tor the enactment of a. law ~ If they are not, then, acting as a legislature, in what otber 

capacity can they be acting except in the capacity of electors Y To 

show tllat they are acting simply as electors, and that they are in no SBnse acting as a legislature, let us look for a. moruent at the m11nner 

in which they act. 

Mr. BAYARD. If the Senator will allow me, I will merely remark 

that, if they are not acting as a legislature, t.hey are not a-cting in ac- cordance with the Constitution of the United States; they are not 

acting, therefore, at all. Their action is void unle s they are acting as a legislature. The language of the Constitution is thatTho Senate of the United States shall be composed of two Senators from caah State, chosen by t.he legislature thereof. 

Now, how can they choose unless they choose as a. legislature 7 

Mr. NORWOOD. I am glad the honorable Senator interrupted mP-; 

it does not disturb me in the least. I am happy to answer him. 

What is the legislature of the State f What does it a semble for Y 

To enact laws for the people of the State to which it belongs, for the 

peoplo who elect it. .And how do they act when they are acting- as a legislature f There is a senate and a house of representatives. The 

senate acts independently of the bouse, and the house independently 

of tbe senate. They pass laws according to tbe constitution of that 

State, and in that capacity they are a legislature. Now, when the 

honorable Senator says that, jf it is not acting as a legislature in 

electing a Senator, it is not acting in accordance with tho provisions 

of the Constitution, he is sticking in the bark. Has the Congress 

of the United States any control over that body as a legi~lature 'I Can 

the Congress of the United States control the action of that body acting as a legislature f Can it prescribe the manner in which it shall 

pass laws Y When acting as a legislature and passing laws, what 

control has the Congress of the United States over it 'f 

Mr. BAYARD. Does the Senator wish an answer nowf 

Mr. NORWOOD. Yes, sir. Mr. BAYARD. It has the control which the Constitution expressly 

gives to Congress. Mr. NORWOOD. To control it in passing laws Y 

Mr. BAYARD. Not to control it in passing laws; but the Consti- tution of the United States delegates to tho Congress of the United 

States the power of altering the regulations of the State, that is, tho 

laws of the State, as to the time and manner of holding elections. So far the legislature of the State in holding elections for Senators is 

controlled by the law of Congress under a power expresely delegated 

to Congress by the Constitution, quito as much as the power is delegated to the legislature of the State to choose its Senators. Mr. NORWOOD. Now, then, if it is acting a~ a legislature, as I 

said, (for we must come to tho definite term,) it must pass a law. The meaning of a legislature is a body to enact laws. Bnt the mis- take the honorable Senator from Delaware is malting is simply this : the Constitution of the United States does nothing moro than merely 

designate the body, the collection of men, who are to act in the 

capacity of electors of Unitcu St.ates Senators. The Congress of the 

Uniteu States, under the Const itution, has tbe power to control the 

legislature as it may please, 2s to time and manner for cboosiug- a Senator. Has tho Congress of the United States any control over it as a legislative body' No one, I do not care bow far he may go in 

grasping at centralization and consolidation, anu gi,ing power to 

Congress over the States, will contend. that Congre s Las any right 

to control a Stato in its legislative capacity, and I am snrpriseil at 

the honorable Senator from Delaware when lle assumes upon this 

floor that when Con;:!reR~ passes an act prescribing tho timo and man- ncr in whicL a Senator is to he elected, it is direct.ing tho action of a State legisln.t.ure, aB a legislature. To show tllat I am not mistaken 

in t.his, let us look fnrthcr. How does the legi latnre act¥ It acts 

tLrongb its separate bodies; but Congress has tile power, under tllat 

provision of the Constitution giving it tho right to prescribe the 

time and manner of holding tho election, to say that tho legislature 

shall r08olve itself into any form that Congre::s may see fit to prescribe, must act in auy manner that Congress may say it sllall act. And how does Congress prescribe'? Why, that the senate and house 

of representatives of the Sta.te legislature shall meet in joint conven- tion and elect a Senator of the Unitcu States. Is it acting as a legislature when it meets in joint convention 'f Does the honorable Senator from Delaware know of any legislature that meets in joint con- vention, when acting as a legislature, to enact a law f 

~Ir. BAYARD. 0, yes, sir. Before the act. of Congress prescribing th~ manner and the time of election was passed at all, when the man· ner was left as the Constitution left it, primarily with the Statl3s, the 

legislatures of the States met under State law in joint convention 

for the purpose of electing Senators. That was, indeed, I believe, 

the only way .. They nc\er elected separately,>Or proposed to elect 

separately, until the passage of the act of Congress; but the two 

houses met as a legislature in joint assembly; and I think it would 

require a remarkable refinement and discrimination that, without 

disrespect to the Senator from Georgia, I might call hair-splitting, to 

decide between persons who are members of the legislature acting in 

their legislative capa.city, ancl who are members, whether they be in 

joint assembly under the law of the State, or in joint assembly nndor 

tho direction of the act of Congress passed in pursuance of the Constitution. 

Mr. NORWOOD. The honorable Senator from Delaware loses sight 

of the fact that is plain and palpable, that when they meet to elect 
106 CONGRESSIONAL RECORD. MARCH 18, 

n, S··nator they are not acting in a. le{lislative capacity; and that is 

the answer to the w!Jole question. T!Jcy a.re, tlwn, iu no sense acting a a, le~i~latnre; they are cast.iug votes nmler a provision of the 

Consti t.ntion a.nd by t.he direction of Congress to elect a. Scuator to 

this body, a.nd they therefore are notbiug more than a designated 

body .under the provi.~ious of the Constitution which is to elect mem- bers to t.his bo1ly. 'Vby, sir, suppose that the Constitut.iou, instead 

of saying that the legislature shall elect members to t.his body, had 

said that. the supreme court of the State should elect Senn.tors, will 

the honorable Sena.tor say tha.t when that snpreme court should sit 

a.nd cast their votes for a Senator they were acting as a court, simply 

because the members of the court llad been designated as the proper 

l1ody to elect the Senn.tor f Would they in so doing render judicial 

judgmentf They would simply be a body ofmeu, as in tlJis case the 

legislature is, that is designated by the Constitution of the United 

Sta.tes to exercise the power vested. in them to elect members to this 

body. 

l\Ir. DA.YARD. If the Senator will yield, I should like to ask him 

another question. 

Mr. NORWOOD. Very well. 

Mr. BAY A. RD. Do the Senators in this body represent the States, or do they represent the electoral body that chose them f Do they 

represent this body of electors or are they here to represent the State f 

Read the concluding part of Article V of tho Constitution: 

:ro Stute, without its consent, shall be deprivetl of its equal suffrage in the Senate. 

Does'nottbat a.nswer the whole question as to how the Senator shall 

be chosen and who cbooses him'? The Constitntion says the legisla.ture 

shall choose him; the Constitution says tbat he shall be cl10sen to represent the State ; and yet tho honorable Senator here is seekiug to find a difference between alrgislature acting under the direction of Congress, 

perhaps separately, perhaps in joint a. ·sembly, and a legiolature acting under Sta.to law as an elective body. The Sena.tor docs not represent those who elected bim; be represents the sovereign State; and 

her right is his right of suffrage in tlJe Senate, and it is so declared in 

the Constitution. The election is a legislative act, and not. tho act of 

tbo individnals as a mere mob, without lt:>gislative authority. 

l\1r. NORWOOD. I agree with the houorable Senator, perfectly, 

that the Senators represent tbc State, that th(\y represent the sover- eignty of the St.ate; but that is foreign to this question. I do not 

int.end to be led off upon any side issues. The qnestion hero is, who 

elect Senators, and in electing them in what capacity do they act Y 

That is the <]Uestion, and not what the Senators represent. Nobody, 

I suppose, will question tha.t tbey represent the States. But when 

t.hey are to ue chosen, and the legislators meet to clw:>se them, in 

what capacit.y do tho legislators act Y That is the solo q uostion, and we are therefore remitted. to the question again, do they act. as a legislature l If they do, then they aro legisla.ting; they are acting iu a legislative capacity, and they a.re not sitnply acting as e1cctors of Senators. l repeat that they are nothing more thau the component parts 

of a particular uotly that is uesigrmtecl by the Constitution as the uody 

to cast the votes in choosing a Henator to tllis body. 

Mr. MORTON. Will tho ::;mw.tor allow me to call his r.ttention to one provision of the Constitution 1 

.Mr. NORWOOD. Certainly. 

Mr. MORTON. The Constitution provides thatThe House of Representatives sl1all bo composed of members chosen every second year by the people of tile 8everal States. 

That is, elected hy t.ho people of the several Sta,tes. Again: 

The Senate of the United States shall be composed of two Senators from caeh Stato, chosen uy the legislature thereof. 

That is, elected by tho legislature thereof; in which, of course, tho 

membArs of tha.t body are merely to bo electors. 

]),Jr. NORWOOD. There is to my minrl, Mr. President, no doubt as to t,he proper construction of that word" chosen/' as mentioned by 

the Sena.t.or from India.nn. They do not act in a legislative capacity 

at all. They are not a legislature when they meet to elect a Sena.:. 

tor. They arc the bo<ly appointed by the Constitution, and Congrru>s 

cannot change that; hut that was done because the legislature of 

the State is the most convenient and t.he ucst body to act ill choosing a Sena.tor to represent that State; tboy do not represent t.lJe legislature, and tlJe legislatnro in choosing t·hem is not the sovereign power 

of the State; they are nothing more than the electors appointed under 

tho Constitution to make the choice. 

Mr. President, I say, therefore, acting in tile capacit.y of electors 

when they como to choose a Senator, tbe legislature of a State, if in 

casting their votes aa sur,h electors they are controlled by bribery, 

and thC:Lt bribery results in procuring the election of a Sena.tor, it 

makes that election void. Bribery is a crime at common law. Assuming my premises to beporrect·, that they are acting as electors in choosing a Sena.tor, I say that any election by the popular voice, or by any 

other uouy who at·e designated simply as electors, and. acting in the same capacity, will bo void, if it is secured by bribery; for the reason that it has its inception iu crime, it.s progress in crime, and ends in 

crime. Aud no election thus beginning, thus progressing, thus ending, can ue valid in law, either at common law or under the provisions of the ·constitution. 

But there was another view presented by the Senator from Dela- ware yesterday to- which I propose to ad vert for a moment. His 

proposition is that in invegtiga.ting this matter, in acting upon the 

1·esolution r"pQrted by the Committee on Privileges and Elections, 

we should be inv~stigating the action of the State. He admits tha,t 

tbe lcgi~la.ture is not the sovereignty of tlw State, as I nuc1erstan1l 

him; aud yet his position ;s that if we were to i~vcstiga.te an act of 

bribery we should ue acting upon t.he Rovereignty of the State. Mr. Pre~iuent, that iM not. consistent. The legislature iR but th~ 

representative of r.he people of the State. 'l'!Jo people are tile sover- eign power. We arc not investigat.iug the acts of the peopl• of t.lJo 

State; we are not investigating tho acts of that entity which is 

called a State; we are not investiga.t.ing tha.t which represents au idea which we call sovereignt.y, but we are in vest,iga.ting the act.s of 

those who are uesignatetl nuuer the Constitution as a body of eleetors, and wl10 a.ct under the Ja.ws of Congress wben casting their 

votes in electing n. Senato1·. So that in no sense can it ue said tl.w.t we are in\est.igating the act.s or the action of a sovereign St.at.e. 

But suppose it were true that. we were investigating t.he acts of a sovereign State, are we not authorized by the Constitut.ion to investigate it-s acts T Has not the State to a certain extent surrendered 

its sovereignty upon this question¥ Has not tbe State uelega.teu to 

tho General Government the power to control this <]Ue tion f Has it 

not in the Constitution of the United Sta.tes consented that the Congress of the United States sba,ll prescribe the time and manner of 

holding the election 'I Has it not consent-ed that the Constitution of 

the United States shall prescribe the particular body that shall elect 

the Senator 'I 

Let ns see to what extent the States ha.ve d_elegated power and 

jnrisdict.ion over tho question of their representation in thi8 hotly. 

First., they have limited tlleir representation to two members. Se(}-

ondly, they have in the Constitution prescribed a.ud limited beyond 

change the qualifications of their Senators. Thirdly, t.his is a surrender 

of an attribute of sovereignty, to wit., the right to choose embassadors 

without prescription of their qualifications by t.he power or sover- eignt~T to which they are commissioned. Fonrtbly, they han~ snr- rendcred the right tq designate tho body of elector who shall 

choose their Senators. The Constit.ution regulates that, and. no Sta,to can change it. Fifthly, they h~ve snrren1lered tho right to fi:s: the 

time for electing Senators. Sixthly, they have snrreuclerecl the rigiJt 

to regulate the manner of their election. Seventhly, they have sur- rendered their right to clecideoo the legality of tho ''elections, retm:us, 

and. <] na1ifications" of their Scna.tors. And if it be true that we are investigating the act of a Sta,te, our investigation 'is within the bounds 

limited in the Constitution by the States tbemsel ves. IIere are seven distinct points in \Yhich the State, in her sovereign 

capacity, and acting in her sovereign capacity, has yielded to ti.Je 

General Government the power of ~ompervisiou anll control over her 

Senators; and can it be true that when the Senate assumes to act nu- der those powers conferred by t.he States, n.nd under the laws oria.ct.ed 

by Congress throngh that provision of the Constitution giving Congress t.he power to regulate tllo time and manucr of elections, we are infringing upon her so,·ereigut.y f When she consents that a cer- tain body sh:lll act as electors of Senators, a.nd that we shall inve. - tigato the manner of their election and the time of tllat election aud 

tho election itself, is there any invasion of State right ! 

Jurisdiction bas been conferred. by the Constitntion; nobody disputes that fact., uot even tho honorable Senator from Delaware, [l\fr. 

BAYARD,] and. tue sole qncstion is as to how far tllat juriod.jction 

goes. We can investigate the qnalificatious; we can investigate the 

return; we c.an investigate tho election; and the sole qncstion, I re- peat, is how far the Senate shall go in considering the validity of the 

electiou. 

Mr. STOCKTON. I should like to say a word to my friend, with 

his permission, if iL will not annoy him. Mr. NORWOOD. It will be no annoyance. 

Mr. STOCKTO~. Perhaps so far from annoying the Senator from 

Georgia it may be a convenience to him to know a fact that he may 

not recollect.. Tho first cl::mseoftho fourtb. section of the lirst article 

of tho Constitution, the oue to which be has reference, provides tbatThe times, place.~. antl manner o~ holdin.,. elections for Sen:~.tors :mrl Representa.. tives shall ue prescribed in each ~tate by tho legislatnre thereof; but tlm CougrlltiS may at any time uy law make or alter such regulation , except as to tho plact1s of choosing Senat.Qrs. 

Thi..« provision was as ailed iu the State conventions, on the gronnd 

that Congress mig!Jt contrive the manner of holding elections R•1 ns to 

excluue v.ll but their own favorites from office. The conventions of 

the States of Virginia, Massachu ett.s, New Hampshn·t-1, New York, 

Rhoilo Island, and South C:uolina ac~ompanied their ratifir·:1.tion of 

the Constitut.ion with a solemn protest againRt the power of Co11gress over the elections. They prepared amendments to tlJe Cou~titu tion 

calculated to carry out. their view, and recorded npon their j•mrnah~ 

perpetual instrnctions to their Representatives in Congrcs::~ t~ nrg-e 

earnestly and zealously their auoption, and to refrain from t!Je exer- cise of any power inconsistent with the principles of the proposed. 

amendments. Judge Story, in his Commentaries on the Constitution, section 826, 

after having stated the objections to the latter part of the clanse 

which were made at the time of the adoption of the Constitution, .and 

the reasoning by which they were made, thus concludes: 

A period of forty years has ~:~ince paRsed h;v without any attempt by CongroR!! to make any re,!!ulatiooR or interfere in the aliq:htest degree in the elections of m<>m- bers of Congress. If, therefore, experience can demonstrate anything, it is I ho entire safety of the power in Congress, which it is scarcely possible (reasoning from the 11ast) should ue exerted except upon -yery urgent occa.!!ions. The St-ates now re~nlate the time, the place, and the manner of elections, in a p-ractical sonss exclusively. Tile manner is very various; :mtl perhaps the power has been ex· 
1873. CONGRESSIONAL RECORD. 107 

ertf'll in some instances, under the influence of local or party elin~s, to an extent which is indefcusiiJJo in principle and policy. There is no uniformity in tbe choice or in tbe molle of election. In some States the Representatives are chosen uy a goner::;] ticket fot· the whole State; in others they are chosen sin~ly in districts, 

&c. In some State.."l tbc candidate must have a majority of all the votes to entitle 

him to be doomed elected; in others (as it is in England) it is suft1cient if he bas a plurality of votes. In some of tho States the choice is by the Yotersviva voce, (as it 

is in England;) in others it is by ballot. Tho times of t.ho elections are quite as various, sometimes before and sometimes after the regular period at which the 

office becomes vacant. That this want of w1iformity as to the time and mode of 

elect ion bas be n productive of some inconvenience to the public service cannot bo 

doubted, for it has sometimes occurred at an extra session a whole State has been 

deprived of its vote, and at the regular sessions some districts have failed of being represented upon questions vital to their interests. Still, so strong has been the s~nse of Congress of the importance of leaving these matter~ to Stat.e reglllation 

that no ctforfhas been hitherto made to cure these evils, and public opinion has 

almost irresistibly settled down in favor of the existing system. 

Mr. President, contrary to the prediction of the learned commen- tator, Congress passed an act in 1842, entitled" An act for the apportionment of Representatives among the several States, according to 

the sixth census," the second section of whiGh provides that in every case where a. State is entitled to more than one Representative, the 

number to which each State shall be entitled under this apportionment shaH be ele.cted by districts, composed of contiguous territory, 

equal in number to tho number of Representatives to which the State 

may be entitled. 'l'b~ authority uncler which CongL·ess made this 

provision was the fourth section of the first article of tile Constitution: the latter part of whicll says Congress may at any time make or alter tho State regulations in reference to the manner of choosing SenatorR and Representatives. 

When that law of Congress pass eel, New Hampshire, New J crsey, Alabama, Georgia, Mississippi, aud Missouri had elect.ion-laws requiring 

their Representatives to be elected by general ticket. New Jersey and 

Alabama conformed to the law of Congress. It was insisted that the 

elections of New Hampshire, Georgia, Mississippi, and Missouri, under 

the State law, were void. Tho debate on the subject occupied a large 

part of the session. The majority of tile commit. tee to whom it was referre(}, reported that the law was unconstitutional, and the mem- bers elected on general ticket entitled to their seats. The minority 

reporte(} that tile law was valid, and the seats should be declared 

vacant. Neither report was formally agreed to; but it was voted by a decided majority that the members retain their seats. The reports were both prepared by gentlemen of great ability-the majority re- port by Stepllen A. Douglas, and that of the minority by Garrett 

Davis;- but both the majority report of Mr. Douglas aud the minority 

report of Mr. Garrett Davis agree, so far as the question which we now have before us is concerned. 

Mr. Douglas says: 

An imperative duty rests upon the legislatures, while a mere privilege is granted to Congress. In the performance of this duty, the legislatures are clothed with a wide discretion, upon which the Constitution imposes no restraints. They may provide for elections by general ticket; or in districts; for voting by ballot or viva vor.e; for opening the polls at once place and on one day, or at different places and on diffurent days. These, and all things pertaining to tho times, placos, and man- . ner of holding elections, are confided to the wisdom and discretion of tho several 

legislatures, to be performed in such manner as they shall deem most favorable to popular rights and just representation. 

He alludes to the fact that when General Pinckney proposed in 

the convention which formed the Constitution, that the Representatives "should be elected in such manner as the legislatures of each 

State shall direct," he urged, among other reasons, in support of his 

plan,'' that this liberty would give more saLisfaction, as tile legislatures could then accommodate the mode to the convenience and 

opinions of the people." 

Mr. Garrett Davis says: 

Some of the States have passetllawR regulating their election of Senators; others 

have not; and yet the constitutionality of tho regulations of the latter States for 

holding their elections of Representatives has not been and cannot be questioned. 

Such States as have no regulations by law for tho senatorial electious may make 

them also. So Congy:ess could pass a law requiring the election of Senators generally· for that woUld be an alteration of the election regulations of some of tho 

States' by addin~ to them. Congress could thus est::tblish uniformity in the mode 

of electing Senators, by-enacting a law requiring both br:mches of tho State legislatures to choose by their aggregate .-ote, and might. confine itR notion to that or any other particular regulation for the election of Senators. That principle has 

generally prevailed in senatorial elections, &c. 'l'he State legislatures might alter 

their existing regulations relating to time or place, or manner, confining their 

action to either one. 

This report proceeds to il1nstrate the meaning of the expression 

"cho. en" by tile legislature, as used in the Constitn tion in reference · to Senators, and "chosen" every second year by the people of the 

several States, in reference to Representatives, insisting that this is 

only an indication of the body of electors, not the manner of elec- tions, or the absurdity follqws that the people of every State not 

only have a right, but are bound to "choo e" the House of Representatives; which is the natural result and the only logical result of 

the proposition proposed. 

I beg pardon of tllo Senator from Georgia for occnp:ying his time, 

and perhaps it may be well for roe to explain that I was reading from 

my own remarks submitted to the Senate on a former occasion, when 

the New Jersey caso was before the Senate. I examined this matter 

carefully then, and I rea.lly felt, in view of the remarks the Senator was making, that I had a right to call the attention of the Senate to 

the fact of the origin of this clan:o;e of the Constitution, of the view 

tnkeu of it by all tho e distinguished men, and of the protest which was made at the time the Constitution wru; furroed against such con- struction being put. upon this clause as I think my uistinguished 

friend from Georgia is now putting upon it. 

Mr. THURMAN. Will my friend from New Jersey tell me what was the decision of the Senate after having heard that argum nt~ 

[Laughter.] . Mr. STOCKTON. In reference to that argument it would be very 

difficult for me to tell how the Senate decided; but as there are many 

Senators present who recollect all the circumstances, t.he Senator from 

Ohio will find no difficulty in getting information on the subject. 

Mr. NORWOOD. I am_very much obliged to the Senator from New 

Jersey tor interrupting me, because, having a severe cold, my voice 

is out of order, and tile interruption has afforded me a rest. I must, 

however, apologize to him in retm:u for asking him what particular 

point be presente by reading that long speech. 

Mr. STOCKTON. The point presented, in the first place, is the 

solemn protest entere(} by the St.1.tes at the time of the formation of 

the Constitution against interference by Congress wit.h tile elections. 

The point is, til at Judge Story says that for forty years Congress never attempted to prescribe any" manner" wllatever, and from the wllole 

of those remarks, as well as the report of 1\Ir. Davis, that the mean- ing of the word "manner" and the effect of the word "manner," as used in the Const.itntion, did not refer at all to any interf~ence with 

the motives of the choice, is manifest boyo"nrl question. Then we have the remarks of Mr. Pinckney when the clause was first introduced in the Constitution of the United States, and, finally aml 

la.stly, the reports of Stephen A. Douglas and Garrett Davis upon the 

difference between the body of electors, that the word" chosen" in 

the ·same clause of tho Constitution had a very different meaning 

when it referred to members of the legislature, and if you gave it any 

other meaning, you obliged all the States of tho Union to choose all 

the members of Congress. Those points were the cardinal points of 

roy propositton. 

.Mr. NORWOOD. As to the first point presented by the honorable 

Senator relating to the protest that was sent np by those States, a sufficient answer to it is ita lex scripta est. They may have protested 

against the adoption of such a provision, but the provision is in the 

Constitution. Congress, by the Constitution, has the power to prescriue the time and manner of the election of a Senator ; and that is a sufficient answer to that protest. · As to the second point, as to the choosing of a Senator, I have simply to say that the word "choose" there can mean nothing else than 

."elect," and wllen legislators meet in convention for the purpose of 

electing, they are not legislators, but electors, and, as such electors, 

their action is subject to the review of this body. How can it be 

otherwise? 

We are here now speaking in the interest of State rights. Honorable Senators say it would be detrimental and destructive to State 

rights to bold that the Senate of the United States might inquire into 

the validity of an election upon a question of bribery. I, on the 

other ha.nd, maintain that it is not only within the power of the 

Senate, conferred by that provision of the Constitution, but when- ever the ca~e arises it is the paramount duty of the Senate to investigate that question in the protection of State rights and in the 

preservation of purity a.nd t.be perpetuation of republican government. Where would we drift if this power could not be exercised ¥ 

A roan prostitutes the legislature of a State, ·absolutely debauches it 

with money, secures his election, comes here, and presents himself to 

be sworn in as a member of this body, and yet we are told the Senate 

cannot investigate the crime, because it does not affect the manner, 

though it affects the essence of the election, and because the motives 

of the members of the legislature might be involved. Why, sir, we are not investigating motives. As the Senator from Indiana said 

yesterday, the only thing that we are investigating is the act, the 

fact, the action of the parties, and tile motive is a matter of no con- sideration. Where an act is a crime, and a party commits that crime, 

yon do not have to investigate the motive. When a man commits 

homicide, the law· attaches to him the motive and makes it murder, 

because it presumes malice. When a man takes goods that do not 

belong to him, surreptitiously, the law presumes the motive, and says 

it is theft. Tile act itself carries witll it the motive and the condemna.-

tion of the law. So it i8 here. Where tlle legislator, acting in his 

capacity as an elector, acts through the influence of bribery, we do 

not stop to inquire what motive he had in casting his vote. Whether 

lle cast it as a patriot, or whether he cast it in order to have a friend 

in the Senate, is a matter of no moment. 

Mr. CONKLING. Will it interrupt the Senator if I try to understand llim at tllat point T 

Mr. NORWOOD. Not at all. 

Mr. CONKLING. In the sha.po in which he is now presenting the 

question, is tho act inqnirecl into there the bribe or the vote T The 

Senator says if a man commits homicide or a theft, we do not inquire 

into the motive, but into the act; and, if a. man is guilty of bribery, 

the law relieves us of inquiring into the motive of the bribe. Now, I 

say, applying that to his argument here, are we now inquiring into 

the act of the bribe or into the act of the vote T 

Mr. NORWOOD. Both. 

Mr. CONKLING. ·And if we are inquiring wholly or partly into the 

act of the vote, ca.n we consider the bribe except as furnishing the 

motive of the act¥ 

Mr. NORWOOD. We are inquiring, as I said, into both. If the 

fact is established that a legislator was bribed by J'llr. CALDWELL, with a view to induce that legislator to ca-st his vote for him, and sulJscqneutly, wllen the ulection came off, that legislator cast his vote for 
• 108 CONGRESSIONAL RECORD. MARCH 18, 

Mr. CALDWELL, we do not stop to inquire into tho motive. I say the 

law raises tbu motive. The act of bribery makes it a crime 

l\fr. CONKLING. Does the law raise the motive of the bribe or of 

the vote Y is the question I put to the Senator. Mr. NORWOOD. Of the vote. The inducement to the vote, in 

other words, is the bribe paid to secure the vote. 

l\fr. CONKLING. Then I understand my friend to admit at this 

point that the crit-erion is the motive of the. vote which he says the 

bribe furnishes. 

Mr. NORWOOD. The criterion of the vote I 

Mr. CONKLING. The criterion of onr judgment at that point, I 

understand him to admit, is the motive of the vote, and his argument 

is that the fact of the bribe supplies us with that mo.tive. Mr. NORWOOD. Yes, sir. Mr. CONKLING. That I do not deny; but I am simply asking the 

question wllether in reality we are to investigate the motives of the 

voter or not. 

Mr. NORWOOD. Not at all. We do not stop to investigate the 

motive of the vote. We are to inve tigate the fact as to whether 

the legislator was bribed, and if, being bribed, he casts his vote; that 

is the end of the inquiry, and the law declares the act a crime. 

Mr. MORTON. The law infers the motive. 

Mr. NORWOOD. The law raises a presumption as to the motive. 

Mr. MORTON. J ust as it does in a case of burglary where a man is killed. ' 

1\Ir. NORWOOD. Just as it does in a case of homicide or a case of 

tll£1ft; there is no difference at all; and the bribery being a crime, 

that vote is invalid; and if enough votes thus procured were cast to secure the election of that Senator, that election is invalid. 

I forget the exact point I was discussing when interrupted by the 

Senator from New York, bnt I believe it was this : that if this election cannot be investigated by the Senate, then a fraudulent election, au election secured by bribery, or an election secured by tho most 

outrageous means that could be devised by human ingenuity, it matters not wllat, if the views of honorable Scnator3 here ·bo correct, can never be investigated ; an election t.hus secured must stand; it must 

stand against reason; it must stand against morality; it must. stand 

against tbe interest and the perpetuity of good government. ·we are left remediless if we cannot investigate it. What can the State do that has been thus prostituted, and is rep- resented here by a corrupt manY She ha~ no power. Her people in 

convention as ambled, in their majesty and sovereignty, are witllout 

remedy. If the position of the opposition be correct, we have notlling 

to do but to submit, sit here, and shake our automatic wooden heads, 

and say to that State, "There is no remedy; it is beyond our power; it 

is beyond your power." Let corruption run riot, let elections be 

carried by fraud, let States be trodden upon and trampled in the dust, 

and yet, sticking in the bark, and upon the letter of the Constitution, 

the Senate has no power, and the people are remediless. 

Is that law f Is that the spirit of the Constitution f When you 

take away from the Constitution its spirit, you take away its life. 

When you take away that essence by which it lives, there is nothing 

left that is worth the haYing. When you say to the people of this 

country that the Senate of the United States is bound by tho letter 

of that Constitution, and it.s vita.l spark is gone, yon might as well cle- cl:tre to them that the vital power of tbo Government is gone with it. ·What' au absurd conclusion, if I may :ty so, with all duo respect auu deference to those wllo oppose me, is it to say that where manifestly, 

openly, wickedly a State has been rlefrauded in the manner I have 

supposed, there is no remedy, no helping band to save. Let us illustrate. I will suppose a state of facts, withont com- menting upon the facts or assuming that they are true. We will as- sume that in the ca.se of Mr. CALDWEJ.L, after the election had occurred, an investigation had been ordered by the legislature, and it bad 

tnmed out that that legislature bad been corrupted to the extent 

(for that is sufficient) of securing his election; that he had been a party to it; that the parties who had been bribed had been convicted 

of bribery, and that we had the cert ified recorde of the courts here, 

showing that they had been so convicted, and a memorial from the w bole body of the people of Kansas prot-esting against his admission, 

anticipating thetin1e when 1\!r. CALDWELL would make a.pplication for a seat in the Senate. What would the Senate say¥ What would be 

its deci~ion f If wo are to be governed by the judgment of those 

who say that we cannot look into the corrupt acts of the electors of 

a, Senator, I ask in the name of justice, what would be the result in a case of that sort i The answer, I suppose, must be, '' We are without 

power; you are remediless ; there is nothing in the Constitution that 

gives us the right to investigate that matter, and we are bound to 

admit him here and hold him as a member of this body, unless we exercise the power of expulsion ." Now, see what an absurdity arises. 

You have the power, yon say, to expel such a member, one thus 

elected, but yon have not the power to keep him out of his seat, and 

therefore you bave to admit him to his seat, and then expel him for 

the bribery. That is the logical sequence of the argument on the 

other side. Yon cn,nnot keep him out of his !'!eat on account of the 

bribery; you can only expel him as a personal punishment; but you 

cannot expel until youadmithim, and while you cannot prevent him 

from taking his seat, you will admit him to get rid of him by expul- sion . 

Mr. CONKLING. If I do not distmb the Senator, I should like to 

ask him a question at that point. 

Mr. NORWOOD. Certainly. 

Mr. CON KLING. l'lla.y I suppose the case of a man convicted of 

perjury, or of murder, or of larceny, after his choice to tbe Senate, 

coming here and applying, tlle people of his State sending with him a petition as numerously signed as tho population of tho State, crying 

out against the disgrace; could we say he was not elected, or sbonld we be compelled to open the doors and then drive him ont Y And if 

we must admit him first and expel him afterward, is not the absurd- ity as great in the one case as in the other Y 

Mr. NORWOOD. I was mily presenting what I consider thelo!ricai 

sequences of the position of the other side. The consequence~ are with them, not with me. I !'lay that, taking the view of tllis ques- tion that t~~y do, from their stand-point, you are driven inevitably 

to the position that when a man presents himself, that you admit 

would not be a worthy member of this body, you must admit him to a seat in this body and then expel him becanse he is not a worthy 

member. The consequences are not with me. It is not my lo<Yic. 1\fr. President, I have but a few words more to say. I have already 

spoken much longer than I intended. I yield to no man on this floor 

in my advocacy of State right . But a few days a•J'o, when the ques- tion of Louisiana was before the Senate, it woulcthave rejoiced my 

heart, and I would have leaped forward with alacrity, if I could have 

found any way by which I could extend a helping hand to the people 

of that State; but, sir, I felt manacled and fettered bv the oath 

which I took when I came into this body to support the Constitution 

of the United States. My construction of that Constitution is simply 

this : that i.n the man:;tgement of~ State legislature, in the setting up or the teanng down, m the makmg or the marring of a State le{'fislature, the Congress of the United States has no power and no c~n trol; and hence, when that question came on, I voted against the 

bill, because that bill assumed that the legislature which had been 

wrongfully established in that State should be controlled by an act 

of Congress. 

I yield to none, not even to the honorable Senators from New 

Jersey and from Delaware, in my devotion to State rights; but 

when I see the consequences that are to follow, which must result in 

the trampling of a State in the dust, which must result in a people 

being misrepresented here by a man who has not been elected by 

their voice, who is not their choice, who has prostit1,1ted their a"ent, 

who has secured his seat here by bribery- ! say':it is not o;;'ly in 

the interest of State rigllts, but it is in the interest of the perpetuity 

of our republican Government that the Senate should lay its hand 

upon that man, and say to him, "You shall not come within the 

precincts of this chamber;" and, if seated here, he should be 

expelled. 

On the other banrl, as I said in the beginning of my remarks, I see dangers to the Senate if we pursue the other course. What \Tould 

this body become if we are to sit here, taking the illustration I gave 

awhile ago, and allow Senators-elect to become members of this body 

when they come tainted, polluted, corrupted, a.ndcorrnptingi Shall 

they be allowed to sit here as the peers of honorable men, who have 

secnred their election by honorable means, and who are, in truth, the 

choice of their States 'f What becomes of tho dignity of the Unit.ed 

States Senate Y What becomes of its purity T What becomes of its 

honor Y What becomes of the safety of the people of this country· if 

its laws are to be passed by criminals¥ If you once pass power into 

the hands of such men, I ask Senators who are the advocates of 

State rights, how long will those States be protected f How long: 

will it be before those very men willla.y their mailed hands upon the 

States, amlsnbvert and destroy all State rights 'f 

It may be said that if we pursue this course we are depriving the 

States of representation in this bod;v. I do not see how tllat follows. 

If a seat is vacated, the same result follows as if a party is expelled 

from this body. The State holds another election, or, if tho legisla- ture is not in session, the governor makes an appointment until the 

legislature meets. What matters it, therefore, so far as Sl;ate rights are concerned, whether we expel a member or whether we vacate his 

seat Y We are not depriving the State of rights in either case. We are in the one case, m· in both cases, saying to that State, "\Vhen you 

send a member here who is qualified to sit in this body-when yon 

send a member here who will not sell his vote for a bribe-he shall be· entitled to his seat; but, until you do, you are not standing upon the same platform of equality with the other States in this Union, and we will not consent that the Senate of tB.e Uruted States shall be 

thus degraded." 

JI.Ir. THURMAN. Mr. President, as I desire to be as brief. as possible, I hope I may not be interrupted in the conrse of my remarks. I 

do not expect to shed any new light on this question; and my only 

apology for speaking is that I feel it to be a duty I owe myself; for, 

sir, we cannot conceal t.ho fact that Mr. CALDWELL- is not the only 

Senator on trial to-day- the whole Senate is on trial. The question 

is not simply whether CALDWELL is guilty, but whether the Senate 

has the intel~i~ence and the firmness to pronounce his guilt if guilty 

ho be. And it any Senator, after looking at this testimony, shall believe him guilty and feel it to be his duty so to vote, there seems to be a necessity that he should state the reasons of his belief. It is a most 

responsible step to declare a Senator guilty of higll crimes and misde- meanors, to declare that he procnred his seat by corrupt and corrupt~ 

ing meaus, and he who does so should be able to state why it is that 

he rendero a verdict of "guilty." 

Now, 111r. President, feoling the responsibility that rests npon each 
1873. CONGRESSIONAL RECORD. 109 

one of us in this investigation, I have carefully read every word of 

the testimony. I have read it in the retiracy of my library, with my 

pencil in my band, determined to the best of my ability to form a cor- rect judgment upon it. It has malle an impression upon my mi nd 

that 1 do not thiuk is likely to be removed. I cannot go into the testimony in deta.il to show why it is that I have arrived at that couclnsion · to do that would take up more time than i8 allotted to me to 

speak; but I may say, in general terms, that I cannot avoid the con- viction that the election of Mr. CALDWELL was thoroughly corrupt ; 

not that there was bribery of one member of the legislature alone, but 

that there was, direetly or indirectly, bribery of more men than con- stituted his majority. 

I do not pretend that I can name the men, nor do I believe that in 

any such ca.se as this the Senate ever will be able to name the men. The Senate must act, as was said yesterday by my friend from Delaware, [Mr. BAYARD,] upon the best evidence that the nature of the ca~e admits; and in this ca.se the only wonder with me is that the 

evidence is as clear and conclusive as it is. Never before in any such 

case-and I have been in the investigation of some of them-never 

before has testimony been so utterly damning as this. Why, :Mr. 

President, let us look at it a little. 

In 1871 there was to be au election for Senator in the State of 

Kansas. There was then a gentleman, named Ar.EXANDER CALDWELL, 

living in the city of Leavenworth, who had been known as what is familiarly ca.Ued a business man; that is, he bad been a Government 

contractor-a contractor to carry provisions and supplies across the 

plains to Indians and to our military posts-and in the pursuit of 

tha.t occupation, a perfectly honorable one, he had accumulated a large fortnne; but he had not the least political standing above that 

of any other intelligent elector of Kansas. There was nothing in his 

political status, nothing in his intellectual ability, nothing in his 

education, nothing in any public service be had ever rendered, that 

would make the people of Kansas think for one moment of ALEXANDER CALDWELL as their representative in the Senate of the United 

States; and had he been a poor man there would not have been, from one end of the State to the other, one man who would have dreamed 

of his ever holding a seat in this body. Yet, sir, that obscure gentle- man grew, in a few weeks' time, to be the most formidable candidate 

before t.he Kansas legislature. With no supporters at first, he soon acquired such support that other caiHlidates were compelled to 

give way, and in the end he wa.s elected to this body by a largo 

majority. · 

Such things as that are not in the ordinary course of human events, 

and we naturally look around to see how it was that this phenomenon 

occurred. A seat in the Senate of the United States bas become iu 

tbis country au object of ambition second to but one, and pm·haps not 

second to that-tbe Presidency. The struggle for a seat in this body 

among the ambitions and able men of the country everywhere is a struggle that sometimes convulses a State and attracts universal 

attention throughout the leng·th and breadth of the Republic. But, 

sir, here we find the prominent men of the State of Kansas either 

standing aside most mysteriously or beaten to death in the race, and a Government contractor, who bad never figured even in a town 

meeting, so far as we know, all at once elevated to the highest place 

in the roll of canditlacy, and finally elected. 

When we look into h~ evidence em bodied in this report, we soon di!llcover a clew to this mysterious event. In t.he first place we find 

that a conference was held in tho city of Leaveu":ortb, where Mr. 

CALDWELL resided, and that the result of the conference was that he 

should be a candidate, and that then, in order to briug him out, a paper wa.i signed requesting him to be a candidate. But, r;jr, that paper, 

signed by I believe about two hundred of the citizens of Leavenworth, 

would have had but slight effect in promoting his election. Some 

other and more potent agency than that was required; and wbat do we find f Why, sir, one of the first things is the expenditure of large sums of money upon a newspaper of that city, in order to circulate 

it throughout Kansas, filled with articles advocating the election of 

Mr. CALDWELL. I do not complain of that. That was perhaps ~itimate; that was perhaps an admissible use of money. Althou~h there 

might be some indelicacy in creating a factitious reputation for one's selt~ although there are some who do not think that that is precisely 

the way to acquire that standing which makes people turn their eyes 

toward a man and say" We want him for our Senator," I shall pa.ss 

that by and call it, if you please, a legal but an indelicate use of 

money. And I mention it for no other reason than to show that 

money was to be used ; that money was relied upon to achieve suc- ce s. 

But, sir, we soon come to something more important than that. 

There was another citizen of the city of Leavenworth, a man who 

l1ad been governor of the State, a man who in previous elections had 

been a candidate for the Senate of the Unit.ed States; a man of influence in Leavenworth, and of extensive acquaintatlce and influence 

throughout the State, and that man was Thomas Carney. Now, sir, 

when we touch Thomas Carney, we begin to see more clearly the 

agency, the means, by which :Mr. CALDWELL was to be elect.ed to the · Senate of the United Stiates. A solemn bargain is made with Thomas 

Carney, and not left to parol, but reuuced to writing, by which, for 

the snm of $15,000 to be paid to him, $10,000 certain and $:>,000 con- tingent on the election of CALDWELL, Mr. Carney agrees, and sole)Imly pledges himself in writing, that he will not be a candidate. And, sir, more than that, there was a S(;)parate article, not committed 

to writing, that he should nso all his power and :1-ll his influence to 

elect Mr. CALDWELL; and, sir, he fulfilled both a.rtioles to the letter. lie did not become a candidate, and he did go to Topeka, the seat of 

government, and, from first to last, per fas ant nefa.s, do all he could 

to elect CALDWELL. He earned his $15,000 if money could be earned 

by such a service. 

But, sir, that is not all. We see now that money is to be used; we get a glimpse of the means by which it is expected that this obscure 

gentleman is to be elevated to a seat in the Senate of the United 

States. It begins with $5,000 to a newspaper and 15,000 to Carney. 

But, sir, there was another competitor, one Sidney Clarke, a gentle- man not unknown to the people of Kansas, for he had represented 

them, and, I believe, at. that very moment was their Representative 

in the House of Representatives, in Congress-elected by the whole 

State; a gentleman known to that people and of grea.t influence 

among them. He was & candidate too. Well, sir, what disposition was made of Mr. Sidney Clarke f He continued a candidate until the 

first vote was given, until the lwuses voted separately; and what 

then f Why, sir, ~ bargain is made with him that his expenses are to be paid, anti he is to withdraw from the contest, and, by the 

strangest arithmetic in the world, his expenses are estimated at from 

twelve to fifteen thousand dollars. 

But, sir, that is not all. We find the declaration of Mr. C.A.LDWF.:LL 

that he will be elected to the Senate if it costs him a quarter of a million dollars. 

Mr. CARPENTER. Where does the Senator find that f 

Mr. THURMAN. In Mr. Carney's testimony. 

Mr. CARPENTER. 0! 

Mr. THURMAN. The Senator says "0 !" as if no credit is to be 

attached to the testimony of that witness. 'Vell, sir, 1 am not at all 

in love with tha.t witness, not the lea.st in the world, no more than 

the Senator is in love with him, but I do find that this Committee on Privileges and Elect.ions, so far a.s I can see, unanimously reported 

most material facts in this case upon the testimony of Thomas Carney. _ Mr. CARPENTER. My friend will allow me to say that, so far as I am concerned, I reported no fact on the testimony of Mr. Carney. • Mr. THURMAN. Well, sir, I cannot help it; I am obliged to tnke 

the report as I find it. I find no dissenting raport about the facts; 

the only dissent I find is as to the conclusions of law upon those f~.tcts. 

Mr. CARPENTER. I know my friend does not wish to misrepresent me, and he is doing it now, unintentionally. 

Mr. THURMAN. It is unintentionally if I am doing it. 

Mr. CARPENTER. I stated, on the first opportunity I had in the 

Senate on that subject, that I dissente£1 totally from the fiodinga of 

the committee in matt.ers of fact, and the chairman of the committee 

confirmed that statement., that I dissented all the way through on the 

findings of fact. I did not take the time, because I had it not, to 

write a dissenting report. I was engaged in preparing the report on the Louisiana case, which was going on at the same time in the com- mittee, and which took all my time day and night, and for that reason I was unable to prepare a minority report; but every member of the 

committee knows that I did dissent entirely from the findings of fact, a.s I state(l when the matter was first reached in the Senate. 

Mr. THURUAN. I was spealdng of the report, and I said that I 

found in it no dissent. Now the Senator says that he did dissent., and 

expressed his di ·sent in the Senate. Doubtless that is so, but it is 

the first time I ever beard of it. Therefore he is right, and I am right. 

In the report, on which we are to act, which we take to our rooms, 

which we read and which we study, I find fact after fact of the gravest 

importance found upon the testimony of Thomas Carney by our com- mittee. 

But, sir, Thomas Carney is not an uncorroborated witness. He 

stands corroborated so much that it will take more argument, I think, 

than has yet been adduced to shake his testimony in its material 

points. Did be receive 15,000 fi.>r standing aside and aiding CALD· 

WELL CALDWELL says so himself in his written paper handed to the 

committee. Did CALDWELL say to Carney that that election had cost 

him from fifty to sixty or seventy-five thousand dollars Y He said the same thing to two other witne ses, at least, who are not impeached, 

and there Carney stands corroborated. But, sir, that is not all. He 

stands corroborated in regard to the use of money by various other 

witnesses who testify to particular instances. And so, .Mr. President, 

bad man as be is, utterly unworthy of our respect, you cannot say 

that his testimony is to be thrown aside. No, sir; you have not made 

against him the old case for throwing a bad man's testimony aside, 

that it is not corroborated. You have not prDved him guilty of perjury in a single instance, so that yon may say of him fal81.£S in uno, falsu~ in omnibus, and therefore he iii not to be believed at all unless 

corroborated. You have not convicted him of perjury in any one ·single instance, so that he could be found guilty by a jury if he were on trial under an indictment. 

Mr. CARPENTER. My friend will pardon me for saying that he 

has not been convicted, but he is contradicted by more than two wit· 

nesses on the same point several times in the testimony taken. 

Mr. MORTON. He is corroborated by more. · Mr. THUR~IAN. Although I requested when I got up that I might 

not be interrupted, as I wanted to speak briefly, I know the laudal>le 

habit of the Senate of turning this halt into a chamber for conve-r::~ation and dialogue, of putting a person through the longer and shorter 

catechism every t.ime he gets up to debate a question, and therefore 
110 CONGRESSIONAL RECORD. MARCH 18; 

I believe I will not complain, tmd I will ·;vithdraw my request that I 

may be allowed to proceed without interruption. 

Bot, Ur. President, that is not all. Here is testimony proving, if 

the witnesses are to be credited, the purchase of the vote of a man named Bayers, proved by Mr. CALDWELL's own confession, of the purchase of a man named Legate, of giving a thousand dollars for his 

vote to a man named Crocker; and then there is that most mysteri- ous tran~:~action, and not so mysterious either, in view of the testimony, abont the seven Doniphan members, and the missing $i,OOO. 

1\Ir. President, it is utterly impossible to shut our eyes to the facts. 

Thoro was a gentleman who had declared that he would be elected 

although it should cost a sum of money that would gladden the 

hearts of a dozen Senators here if they owned it in equal parts. Here 

is a gentleman wbo suddenly springs up into importance in this 

way, and who confesses that his election has cost him from sixty 

to seventy-five thou ·and dollars, and against whom are proved 

these particular instances of bribery and the corrupt use of money; 

and yet Senators hesitate and say, " Why we want proof of so many 

distinct cases of bribery, enough to have controlled the election, and, 

until the bribed men can be named, the proof is insufficient." 

Mr. President, if you do not expel a Senator for bribery, or declare 

his election void for bribery, until yon get stronger testimony than 

is in this case, the power to expel and the power to judge of elections 

migllt as well be stricken out of the Constitution. 

Now, sir, I am not troubled at all in this case wit.h the question, 

what wottld be our duty if there were a single case of bribery proved 

and nothing more ; a single case of bribery where the majority was large. I cannot resist the conviction, I cannot shut my eyes to the 

fact that Mr. CALDWELL bonght his way through that legislature 

into the Senate of the United States, and therefore the question is 

plainly presented, is an election which is procured by bribery a valid or a void election Y Is it the law of this land, is it the Constitution 

under which wo live, that a man can buy a seat in the Senate of the 

United States¥ That is the question. The question is wl.Jether you 

shall make proclamation to the people of the United States that seats 

in the Senate are merchandise, and that the mao who bas the longest 

purse gets the goods. · And now it is said that it is the law of this land that, no mat' 

ter how plain and flagrant tho bribery may be, although it were confessed upon tho record, although the testimony was such as to 

convince beyond all reasonable doubt, nay, though there should 

be no doubt at a.Il, yet the election is a valid election. That is tho 

doctrine. Why a valid election f Because, as we are told: wo cannot 

look into 'the motives of the members of tbe legislature who cast 

their votes. If every man of tl.Jem w bo voted for ALKXANDEH. CALDWELL were to come before the. Senat.e at its bar, and swear that he 

did so vote for a money consideration, and CALDWELL shoulcl stand 

hero and say, "I admit it.; now what can yon do f" the Senate of 

the United States would have to reply, '' 0, wo cannot impute to 

these gentlemen that they were guilty of being bribed; wo cannot 

impute corruption to them; they are members of a State legislature; 

State rights prohibit our imputing anything like crime to them ; wo cannot do that at all; and although they stand at onr bar bolding 

up their bands and pleading guilt.y, ancl tueir elected man pleads 

guilty too, the election is nevertheless perfectly va,licl, and all the 

l:;enate can do is to expel the man if two-thirds are found voting to 

expel him!" 

Mr. President, before I come to such a conclusion as that, I shall 

have to hear stronger arguments than I have yet he~ml . I admit 

tl.Jat there is danger-and that is the only thing that makes me falter 

in my conclusion-there is da.nger that the power of a majority of the 

Senate to declare an election void may be abused. 

I know that, when party spirit runs high, acts of injustice are done 

to a minority; and I do not underrate that danger at all. But, sir, on t.he other baud is a danger that is mor! appalling than tbat. I can- not conceal from myself that if there were not corruption in society 

itself, no such transact.ion as that election of Mr. CALDWELL could ever have taken place. It is because corruption threatens to permeate 

the community, it is because the use and the illegal use of mouoy in 

elections is becoming the rule and not the exception, and tha.t too 

many people are stopping their ears and shuttiug tl.Jeir eyes to the 

fact of how their elections are earried, and too often tacitly saying 

that all is fair in politics-it is because of this corruption that menaces the whole body-politic of the country, that such an election as tha.t of 

ALEXANDER CALDWF.LL ever could have occurred; and now, if the 

Senate of the United States EhaJI say to the conn try, "This thing is 

legitimate; we make proclamn.t.ion to all adventurers that they may 

buy a legislature at their will, and we will 110t hold the election to 

be void;" if you say that, yon will have done more, Senators, to overthrow purity in tbe Government, more to overthrow tho power of republican institutions, more wrong to tho people, and more wrong to 

the Government than ever will be perpetrated by a lawless majority 

in this chamber turning out without cause a member of the minority. 

The mass of the people, thank Heaven, arc yet pure. I beseech yon, 

Senators, to aid tbem untl uot the corruptiouists. 

llut, Mr. Presic.lent, what is the lt:gal argument iu the case? To 

roy mind it is in a very narrow compass. I a~r e tllat it is to be de- termined by the Coustitntion. I do not say that. iftherc were nothing 

in the Constitution on the subj ect of our being the jnclges of tho 

elections, qualitjcations, and returns of our members, WL'· wonltl have no power of decisiou upon these matters. I thiuk, with Chief Justice - / 

Shaw, and I do not see bow anybody ca.n think other·wise, that that 

is au inherent power, and that, in the absence of express grant, we should resort to the inherent power in order to exercise it. But when 

there is an express power given to us, it is not admissible for us to 

resort to implied powers. I say there is an inherent power in the legislature to judge of the election of its members. 

Mr. BAYARD. The authority relied on did not say so. Mr. THURMAN. If he ditl not he ought to have t:!aid so; that 

must be so. But when there is au express power given, then, I say, 

yon do not look to implied or inherent powers, you go to the expre~s 

power, aucl I go to the express power to find the authority for tbe 

resolution of our committee. What is that express power'? It is fouud 

in Article I, section 5, paragraph 1, of the Constitution: 

Each House shall be the judge of tho elections, returns, aud qualifications of 

its own members. 

There is the express power. Now, sir, I have first to say to my friend 

from Delaware that if the power to jndgl~ of the elections includes the power which I contend for, then there is no violation of Sta.te 

right-s in exercising it, for it is expressly delegated to us. It cannot 

be <1 violation of State rights to exercise a power that the Constitution 

confers upon us. Yon might just as well sa.y t.lta.t it was a violation 

of State rights for us to levy taxes or to-declare war. Mr. BAYARD. I did not say that. . . 

Mr. THURMAN. I know my friend is too a.ble a lawyer to ever say 

that. The qneRtion is a question of the interpretation of the Constitution. If the Constitution confers the power upon us, there is no violation of State rights in the resolution; if it does not cooter the power 

upon us, we do not possess it; that is all there is of it.. So that the 

question is not one of State rights at all, but is simply a question of 

the interpretation of the Federal Constitution. 

Now, is this power delegated T In the first place I have to remark 

that you fin-d no such power in the Articles of Confederation. Why 

not f Because the members of the Congress of the Confecleration were in fact, wbateYer you ma.y call them in name, embassadors of tlle 

different colonies, or States. Each of them derived his whole power 

from the State that appointe1l him. He was not appointed under any general con~:~titntion for the whole country, but be was the delegate 

chosen by the State, and the Stat-e alone had the right to inquire 

whether he was properly appointed or whether he should retain his 

seat, and the State bad the power to turn him out at any time, to 

rescind his appointment at any time, and compel him to leave tue 

Continental Congress. Therefore you find no such power in the Articles of Confederation. But that is not the case now. \Ve have a Constitution: and the Senate exists by virtue of tho Constitution; 

and the Constitution declares how the Senate sha.U be constituted, 

aud what sllall be its powers; and among them is the power to judge 

oft he elect,ions, q ualificatious, and retmns of its members. 

Now, Mr. President, mark it, there is no question as to what is meant 

by" qnalifications." We know tuat those are tl.Je qualificationsspecitiecl in the Constitution itself, and that you can superadd no ot,ber qualification. _ There iii no difficulty, either, about the "returns." 

\Vhat shall be the returns is a matter to be determined by law, and 

the law declares what sball be the r etnrus, wh:1t they shall conta.in, 

and what t.hey shall show ; that is all matter of law; and we decide 

upon their face whether they are in due form and in compliance with 

law. Bnt then, sir, comes the qnestion of the election. \Ve are to 

be the judge of the" election." Wbat is meant by that Y In tue 

fir.st place, mark it that the word is without limitation. It does not 

say you sball be the judge of tho election qnoad t.uis or quoad that; 

yon shall be the judge to the extent of finding whether the election '"as held on the right day, or whetl.Jer it was hel<l by a body that const i~uted a valitlle~ishtturc, or whether there was a ·majority, and 

you shall be jutlgo of notbing else. It pnts no limitation on your 

power to judge of the elect,ion. It is a perfectly unlimited power to 

judge, and is therefore a po.wer to hold the election void for any cause that, according to law and reason and consi:stency with onr Constitution, makes an election void. · But, sir, that is not all. The power given to the Senate is precisely 

the same as the power given to the House of Representatives. It is 

not given in a similar paragraph; it is given in the same paragra.ph. 

The very same words that coufer the power upon the Senate confer • the power upon the House. Has tbere been any one here bold enough 

to deny that it is competent for the House of Representatives to un- seat a member upon proof that he obtained his election by briberyY 

No one has done tl.Jat. But when yon say that the House bas that 

power, yon must say the same thing of the Senate, fur the same words 

that give the power to the House give it to the Senate. There is not one word in tho Constitution that makes any difl'erence. The Sena- tor from New Jersey [Ur. STOCKTON] attempted to tind a difference, 

and called onr atte.ntion to the fact that the clause which provides 

for the elect.ion of Senat,ors was in the~:~e words: 

The Senate of the UnitE>d States shall be composed of two Senators from each 

StatL•, chosen by the legislature thereof. 

Anfl he dwelt upon that word "chosen," and said that all we could 

mqniro about was, "·bother there was a lawful leg-islature and whether 

it lllafle a choice; :mel that we could go no further. That I rna.y not 

misstato him, I read his very words: 

Tho fir t question that comes up, ther efore , in every one of these cases, is. is it 

the legislature of the State 1 and the next question is, did they cho e~ and further than that there is no qnestiou. 

Tbu.t is the proposition. \Veil, sir, it is substantially the s:,~.me 
1873. CONGRESSIONAL RECORD. Ill 

proposition maintained by every one of the Senators who have 

spoken agaio8t the report of the committee. Co\'Cr it up in words 

if yon please, jt all comes t o that. It is snbsta.ntially the t;ame proposition-that you can only inquire, was there a. legislature, and did it. choose' Well, now, might you not with just as much proprict.y un- der this clause about the election of members of the HoW>e of Representatives, say that the only inquiry is, were the' persons who chose, 

the people of the State, and oid they choose T The language, mutatis 

mutandis, is exactly the same. Tlle language in regard to members of 

the Honse of Representatives is that--

The House of Representatives shall bo composed of members chosenJust the same wor(l, "chosen"-

every second year by the poople of the several States. 

And tllerefore yon might with just as much propriety say in the 

House of Representative~:~ tlle only question is whether the men who 

voted for this member were the people of his State, by which is 

mea.nt the qnaJitied electors of that Stat~"\, and did they choose him. 

And if they diu choose llim, no matter how co'rrupt were their mo- tives ; no matter how many of them were bribed; no matter though 

he bought his seat there, st-ill, yon can no further go. Tlley are the 

people, they have chosen, and there is an end of the matter. You can say that just as we1l ill the one case ns you can in the other. 

But, Mr. President, let us go a little further than that. What is 

this language in the Constitution T "Each Honse shall be the jmlge 

of the elect.ious," &c. \Vas that a term unknown to the law," jmlO'e 

of the elections of its owu members'" No, sir; it was known lo~g before this Government had au existence. It was ·known long before 

this continent was discovered. It was a term known to the law of 

that land from which we derive the most of our institutions, and by far 

the greater part of our law, long before Christopher Columbus was born. "Judge of the election of its own members" is a term as old as the British Parliament. What does it Hignify if it does not meau that the House may hold an election to be void if it was obtained by 

bribery f When our forefathers put that language in the Constitution of the Uui.tc(l States, thty knew what it was for a legislative 

body to be tlw judge of the election of its own members, and they 

knew that, according to parliamentary law, in judging of the election 

of a membel· of the House of Commons, if it were found that he was elected by bribery, it was held that his election was void. They 

knew that in the constitution of everv American State then in existence, for those st.ates pre-existed the Feueral Constitution, there was a similar provision and a similar construction put upon it. 

Mr. CARPENTER. My friend will pardon me. I believe I had his 

permission to interrupt him. 

Mr. THURMAN. Once every ten minutes. 

:Mr. CARPENTER. I unuerstand the Senator tomaiuta.in that the 

power of the Senate in judging of the election of its members is precisely the same as the power of the Honse in judging of the election 

of its memoers. Am I right f 

Mr. THURMAN. Under the same clause. 

Mr. CARPENTER. It is conceded on all hands that the Honse may 

inquire into the qualifications of the elector voting for a candidate 

claiming a seat. Does the Senator maintain that the Senate can inquire into the qnalitications of tbe elector-that is, the member of a legisla,ture-t.o holu his seat and vote for a Senator Y 

Mr. THURMAN. The Senator has only anticipated me. I had not 

forgotten that that inquiry would be put. I believe I answered it 

the other day. TlJe Senator probably did not hear it, or it attracted 

his attention so little tba.t he paid no attention to it. _ Mr. CARPENTER. I would like to hear the answer now. Mr. THURMAN. The a.nswer is very plain and perfect. The decision of an iuspector of election, sitting to receive votes for a member 

of t.he House of Representatives, extends how far' It extends to 

the question of whether or not a man is a legal voter. In some State~ it 

does not go that far, for they have prohibited that inquiry in Alabama; 

but that is as far as it extends in any of the States-to inquire whether a. man is legally entitled to vote. That decision of that jud<Te or inspector is not conclusive and final. It is not conclusive anl' final in 

the State, for if be decides erroneously-if he rejects the vote of a mau who is entitled to vote-he is liable to action and to pay damages, although he acted in the most perfect good faith. That is the 

law in Ohio, Qnd I am sure it is in many other States. It is not, 

therefore, conclusive in the courts of his own State, and is not con- clusive in that highest and only conrt which can try the ri<Tht of a member to a seat in the House of Representatives of Congre~s. Bnt 

that is not the case with a State legislature, because the State constitution, which we respect, and whiclJ our Constitution does not authorize us to overthrow, says that each house of the general assembly 

shall be the judge of the elections, qualifications, and returns of its 

memberR. 

Mr. HAMILTON, of Maryland. Has that constitution any more power than the common law, if it is against the Constitution of the 

United States f 

Mr. THURMAN. It is not against the Constitution of the United 

States. 

Mr. HAMILTON, of Maryland. Yon can inquire into itT 

Mr. THURMAN. Inquire into what 'f · 

Mr. HAMILTON, of Maryland. Iuto tho qualifications of members 

of the le:-.rishLture of a State f 

Mr. THURMAN. I ~<ay yon cannot. 

Mr. HAMILTON, of Maryland. I say so too. 

Mr. CARPENTER. Then the power is not the same in the two 

Houses, because we all concede that the Honse can inquire into tlle 

qualifications of an elector. 

Mr. THURMAN. The Senator understands me perfectly well. What we iuqnire here is, was that a legislature Y That we can inquire into 

just as the House can inquire whether the men who voted for a mem- ber of Congress were the electors. If they were the legislature, then t~ey are the electors of the Senat-or; but when yon come to the q ues- twn as to whether they were the electors of the Senator, you come to a rule of evidence, and it is simply a rnle of evidence that the decision 

of each house of the State legislature, made pursuant to its constitution, is conclusive on that question. 

Mr. CARPENTER. Does t.he Senator mean that we may judge of 

them, but are IJouud to judge as they jndgeY 

Mr. THURMAN. The Senator ought not to put a question to me in that way. He is too good a lawyer to put a question in that ad 

captandu11~ way. If we were on the stump it would do, but we are not on tlle stump. The Senator knows very well that the rule of 

evidence in one case ruay be very different from the rule of evidence 

in the other, but the substance of the thing is precisely the same. Mr. CARPENTER. · Suppose a. Senator is elected by a majority of one in a legislature, and au offer is made here to show that that one man, who turned the scale in the legislature, got his seat by IJriberv 

at t.he polls f • 

~fr. THURMAN. You cannot prove it, and nobody ever pretended 

that yon could; and it does not militate against my argument. 

1\Ir. STEW AUT. Suppose he wa.s not elected a.t all f 

Mr. THURMAN. Snppose be was not, but was admitted by the 

body which bad the sole right to judge. 

Mr. CONKLING. May I inquire¥ 

Mr. THURMAN. I suppose so. Mr. CONKLING. I simply want the authority for·that proposition. 

I want to know wbetlJer it is the Senator's assertion, or whether there 

is any authority for itT 

Mr. THURMAN. What proposition Y 

Mr. CONKLIN(,}. The proposition that we cannot inquire whether 

ten men in the legislature of Kansas were mero intruders and usurperl3, with no certiticat.es at all. 

1\lr. THURMAN. Mr. President, I am not the teacher of a common school, to 'instruct my friend the ABC of the Jaw. He knows just as well as I do, and lJo kuew just. as well before he asked the question as he knows now, that when either branch of a State legislature has 

passed upon the right of a ruan to a seat in that legislature, we have no right to go behind that decision. 

:.Mr. MORTON. Will the Senator allow me to make a suggestion 

right there T 

Mr. THURMAN. Yes, sir. 

Mr. MORTON. Mr. President, by the ConstitutionThe Hoose of Representatives shall be composed of members chosen every sec. ond year by the poople of the sevoral States, and the electors in each State shall 

have the qualifications requisit.o for electors of the most numerous branch of tho 

State legislature. . 

The House of Representatives, in a contest-ed election, must accept 

the electors as tLe BtR.te provides them for the most numerous branch 

of the State legislature, whatever tha.t may be. Now, when yon come to the Senate, the electorn are thoso who compose the legislature, that 

legislature to be determined according to the law of the State. As 

the State gives us the leg-islature, so we have got to take it, each 

member of it; anu as tho State gives us the electors for members of 

the House, so we have got to take them. That is the whole question. 

Mr. THURMAN. Now, Mr. President, I will proceed to call attention to another thing. The whole argument of my friend from New 

Jersey hinges on the wortl "chosen:" 

The Senate of the United States shall be composed of two Senators from each 

Staw, chosen by the legislature thereof. 

What is the ...meaning of this word "choseu f" it means "elected;" 

that is all it means, and I will prove it to yon in one moment. 

The very clause wlJich I have already rea-d says that we are judges of the elections. Is not that the choosing f When, therefore, it says that we are the judges of •the election, it says we are the judge whether this man was chosen, and "chosen" and 

"elected" are used a~ convertible terms. Therefore, there is nothing 

in this word "chosen" at a.ll, any more than if it had been "electecl 

by the legislature thereof," inst.ead of " chosen by the legislature 

thereof." We come back, then, to the proposition with which I set 

out; we are judges of the election, and no limitation is placed on our power to judge of tho election, except that limitation which the la\v 

of the land places upon it. \Ve have not an absolute rliscretiou to 

say that this man was not elected for some fanciful reason which we may set up. There mu~t be good cause why be is ilot elected. It is 

admitted on all hands that if it were duress, it would defeat the election. Why would it defeat the election' Let us seo. The case bas 

been put here by my friend from Delaware, [Mr. SAULSBURY.] Suppose that the Kansaslegishtture had ueen surrounded by a mob or by a military force, and that under menace of death those members bad 

voted for Mr. CALDWELL, would yon say that t.hat was a valid elec- tion~ I know the answer that is given, "There was no election; tb~ 

men had no choice." 

Mr. CASSERLY. It was not a legislature. 

Mr. THURMAN. It was a lof,rislatnre, bnt not a.l~gislatnre exer- ch;iug a. free choice. Tho Senator might n.s well toll l11e that I bau 
112 CONGRESSIONAL RECORD. MARCH 18, 

not a tongue, if he threatened to knock me down if I spoke, and I 

submitted and said nothing. 

Mr. CASSERLY. Allow me to ask the Senator a question. 

:Mr. THURMAN. I will give way once more. Mr. CASSERLY. Does the Senator think that the K~llogg legislature in Louisiana, for instance, which was a legislature constituted 

by military selection at the door o.f the house in which it met,. was a legislature f And now I should like ~ ask the Senator what differ- ence be sees between the Kellogg legislature so constituted and a lgislature which, tllough lawful when it met, was captured by military force. 

Mr. THURMAN. Mr. President, I hope to say something about the 

Louisiana legislature next winter, if I can get a chance to do it. I am not going into a discussion of Louisiana matters here. The Lord 

knows when I shall get done if I were to answer such questions as 

these. 

I say that the legislature of Ohio, which is now in session in Columbus, is a legislature, and would be if you had ten thousand troops 

around it, and none the less a legislature, too, if it were menaced with 

violence in case it did not pass a particular bill or do a particular act, · as in the case where Lord George Gordon's mob surrounded the House 

of Commons. It might have no free choice, and it would be right to 

say that a man who was chosen by it under those circumstances, that 

is, who had the forms of choice, was not the choice of the legislature. 

Certainly that would be a case of plain duress. And now I want 

to put to my friends: Suppose a legislature with a thousand bayonets around it, or with a mob like that of Lord George Gordon, 

crying out, "Elect CALDWELL, or die," had elected him, would you, if 

thoee members of the legislature should come here, and at your bar 

tell you, "We would have voted for CALDWELL anyhow, if there had 

been no bayonets, no mob there;" would you say that that was a valid 

election, or woul:l you say it was no election at aJl 'f Would you, for one moment, think of allowing members of the legislature to say that, 

nuder circumst.ances like that, "that violence did not make any differ- ence with us; we would have voted for him anyhow 'f" No, ~enators, 

you would uot do any such thing. Yon would say, "That election is 

void whether these mf'm bers of the legislature voted according to their 

prepossessions or not; although every man of them preferred CALDWKLL to anybody in the world, that election, under those menaces and 

with those bayonets around them, is a void election. We will not allow men to cllange around afterward, and, contradicting the plain truth, 

say that, nuder these circumstances, they had a f1·ee choice." No, sir; 

it is not simply a question wllether the member had a free choice; you 

would say in such a case as that conclusively, and not allow it to be 

relmttell, that they had not free choice. 

.Mr. President: there is one case, t.hen, in which it is admitted 

that you can go behind the formal vote. I think I can find others in 

which you could go behind it, and in which you would tleclare the 

election to be void. I think I can conceive of others in wllich you 

could do so. I can conceive of a case in which a legi;:;latnre was imposed upon and made to vote for a man under a f:tlse personation or the like, and in·which the Senate wonld declare llis election void for 

the fraud. I think I can conceive of such a case as that, and it wonl(l 

be very easy. But we need not go on speculating auout ca.ses. Bribery was a crime at the common law, and bribery avoitls elections 

in every civilized country on the globe. There is not a single one in 

which bribery does not avoid an election. In our own country it 

avoids it in every State legislature; it avoids it in the other House o~ this Congress; and if this ~enate shall declare that bribery does not 

avoid an election to the Senate, it will have the unenviable dignity 

of being the only body on Gotl's earth in which a man can buy a valid election with money. It militates nothing against this argument that the courts cannot declare a law invalid because its pas- s~ge was procured by bribery. Of course they cannot, for the judicial 

power extends to no such inquiry. Bnt our power, by the expmss 

terms of the Constitution, does extend to an inquiry into the valitlity 

of au election of a Senator. 

Mr. President, perhaps it is not necessary to go into the qrrest-ion 

whether a legislature, in electing a Senator, acts as a body of electors or whether it acts a.s a legislature. But upon thlli subject one thing 

is very certain, namely, tllat unless you give to the word "legislature," in the clause of tb@ Constitution under consideration, the interpretation given to it by the Senator from GeQrgia, [Mr. NoRWOOD,] 

who spoke so ably this morning, that i~, as descriptive of a body of 

persons, the mode of electing Senators from the foundation of the 

Government to this day in most of the States has ·been plainly un- constitutional, for in the great majority of the States, from the very 

beginning, Senators were elected in joint convention. It is nnnecessaxy for me to say that a joint convention is not a legislature in the 

strict seu.se of the term. Everybod.v knows that it is not; everybody 

knows that it cannot be; that it would overthrow the very idea of 

the Government to say that that was a legislature. In all the United 

States the legislative poweris partitioned between two chambers. The 

idea of a single chamber ha.s no foot-bald in American institutions. 

Members are elected to a senate and members are elected to a house 

of representatives, and the house is usually much larger than the 

senate, and yet the senate has equal power in legislation with the 

bouse; but if they were thrown into a joint convention to pass a law 

t.l.Je superior numbers of the house would pertect.ly· override the senate, 

and tLe whole idea of the checks a.ud balanct•.s aut! better consideration of measures dari vecl from two chambers would be lost. \Vhy, 

sir, nobody would .pretend that the legislature of any State, or that 

this Senate and House of Representatives, could get together and 

enact a law. 

Mr. BAYARD. I ask the Senator whether he considers it necessary 

for a republican form of government to have two bou es of a legi lature; whether yon cannot have a republican govornment with a single 

house, and whether our own Confederacy, which was a republic, bad 

not but a single house f 

. Mr. THURMAN. I was not dealing with what would be a repub- lican government. 

Mr. MORTON. Is that question involved in this case? 

Mr. THORMAN. I have so much respect for my friend from Dela- ware that I am sure it must be or he would not have asked the question, because he is not given to asking impertinent question~. I 

therefore think it has some conuectiou with this issue, but I couf~ss 

I cannot see that it has. 

Mr. BAYARD. If I may give the reason for my question, I will 

do so. 

Mr. THURMAN. I shall be pleased to hear it. 

Mr. BAYARD. I a-sked the question hecarrsethe Senator from Ohio 

had stated that when the two houses met in joint a~embly they no longer were a legislature; that the Constitution requiring that tho 

legislature shall choose, and pointing out the method, yet the fusion 

of the two honses in the joint assembly, in his viewing, destroys the 

legislative character of the body and makes them a mere electoral 

bouy. Now it occurs to me that if it were true that they were a body 

of mere electors, directed by Congress for the purpose of performing 

this duty, t.hen· Congress would have the right to look into their qualifications. Why will you not look into their qualifications 'i It is 

because they are a legislature. It is because the constitution of t.he 

State makes them a legislature. It is because the constitution of the 

State alone determines their qualifications and puts it beyond the 

power of Congress to examine into them. Now, sir, if they are a mere body of electors, what prevents t.be Senate from testing t-heir 

qualifications 'f If they are a legislnture, you admit the Senate can- not. Therefore I say that my question had pertinency, because the 

Senator seemed to consider that beca.use they were a single body they 

could not be a legislature. I conceive tllat a republic can perfectly 

exist with a single legislative body, although om form of republics, 

following in the framework of the country from which we chieily 

derive our laws, has two houses, to act one as a. check upon the other; 

and yet it is well known that the Confooerate Congress was a single 

body, and we had republics in existence at that time. 

Mr. THURMAN. I must confess that it proves the extreme eagacity 

and far-sightedl1ess of my friend that he finds in the question he put 

to me, whetlltr there might not be a republican form of government 

w1th one chamber, a pertinency to what I was speaking of. I was speaking of what constitutes a legislature, and not about the qualifications of it.s members. But I do not know that it makes much difference how this question is argued. We are all attempting to arrive 

at the trutL, and I am perfectly willing to consider my friend's suggestion, although, if I speak longer t.hau I intended Lo do, I hope tlle 

Senate will put to my credit the fa{)t that interruptions have neces- sarily prolonged my discourse. 

It does not mako one particle of difference, as to our right to inquire 

into their qna.liticatious, whether you C<tll the 1.-:gislatnre that elects a Senator, in tho act of election, a IJody of electors, or whether they 

are, strictly speaking, a legisL:<tture. As to tllo question of our right 

to inquire into their qualifications, it makes not tlle least di.tfcrence in 

the world. I will suppose them to be a body of elect~rs. Wllo is it 

that constitutes that body of electors f The members of the legislature; and, a-s I said before, who are members of the legislature is 

determined by each house of t.he State legit~laturc itself, and conclusively determined. So there is uothiug in that argument that, if they ar·e to he treated as simply a body of electors, we should have a right 

to inquire into their qualifications. We worrltl have a right to inqui.re this far, have they been seated tllere, or are they recognized by each 

house a.s members of that house J That is all. 'fhere your inquiry 

stops. There you are met with a piece of conclusive evidence which 

you are not permitted to rebut. 

I say once more that if the· election of a Senator is a legislative act, then the Constitution has been violated from ·the first elm:-

tion down to this day; then your act of Congress regulating the 

time and manner of election is :flagrantly uuconstitrrtional. Why so f Because under this act of Congress (and one of the very reasons for enacting it, too, was this fact) if there is no selection of Senator n the first day, on Tuesday, then the two houses are required to 

meet in joint convention the next day, and a quorum to do business 

the next day and proceed to the election of a. Senator is not a 

majority of each house, but is a majority of the whole num,ber of the 

members of the legislature, of both houses together, who have been 

elected, and that majority of all the members of the legislature, of 

both houses, may proceed to the election of the Senator; and the 

consequence, therefore, is, that if on Tuesday there is no election and 

the next day the senate, being the smaller body, should refuse to go 

into joint convention at all, the house, according to your law, may elect a Senator, it having a majority of all the members elected. 

But is that a legislature iu which there is no senate, when the 

State constitution declares that the legislature shall consist of a 

sena.te and house of representatives f No, ~ir; iu accorclauce with 

the history of this Government, with tlle practice under tllis GuvI 

I 
I 

1873. CONGRESSIONAL l~ECORD. 113 

\ 

ernment, and with the act of Congress, yon cannot treat the election 

of a Senator as a legislative act. 

But let me put another question to my friend. What will be do 

in those States in which every legislative act must receive the 

sanction of the governor before it takes effect¥ Must there be the 

sanction of the governor to the election of a member of the Senate • of the United States? He will say it is foolish to ask such a question, because the Constitution of the United States provides that the 

Senator shall be elected by the legislature. Yes, sir; it does so provide, and it does so provide with full knowledge of the fact that at 

the time that Constitution was adopted there was scarcely a State in 

this whole Union in which the approval of the governor was not 

necessary in order to the creation of a Jaw. The very fact that that is 

the case does most powerfully tend to show that by the word" legislature" as here used is meant that collective bodv of individuals who are members of the legislature, not the legislature in a technical sense as a law-making body. 

Mr. STOCKTON. I should like to ask the Senator from Ohio a question . .Mr. THURMAN. Certainly. 

1\fr. STOCKTON. I should like to ask him to explain the Harln.n case. I should like to hear him comment on that case in the view he 

bas j nst expressed. 

Mr. THURMAN. I think the Harlan case :1nd I think the Indiana case would strengthen what I have said. I should think it would be 

pret.ty difficult to maintain that that body which elected Fitch and 

llright was in a legal, technical sense the legislature of Indiana. It 

seems to me it would be very bard to maintain that proposition. As 

to Harlan's case, the facts are not fresh in my memory, and I beg my 

friend not to read a page from the Gwbe to tell rue what they are, but 

to read it after I am through. 

Mr. STOCKTON. I shall not read a page from the Globe, but I 

would like to exp1ain--

Mr. THURMAN. I beg the Senator not to do it. lam tired. Senators do me too much honor. They seem to think I am able to ex- plain everything, and I confess I am not. [Laughter.] I do not see very well how the Senate ever could have helcl that those Indiana, 

gentlemen were elected, except upon the theory that the legislature 

spoken of in the Constitution that elects a Senator is a body of electors 

who are members of the legislature. That was a case in which the 

senate of Indiana refused to go into joint convention, and the house 

of representatives, or rather a majority of them and a minority of 

the senate, did go into joint convention and elected Senators, and as they constituted a majority of the whole body of members of both 

houses, the Senate held the election to be good. Those are briefly the 

facts as I now remember them. 

1\Ir. STEWART. Everybody knows the decision was wrong. 

Mr. THURMAN. Everybody does I I do not know it. Tllere were wise men in Gotham at that day as well as there are now. It may be 

that all others knew it, but I was not aware of it. 

1\lr. STEW ART. Either the State or the United States prescribed 

the method, and in that case they violated both. 

Mr. THURMAN. The United States had not prescribed a method. 

Mr. STEW ART. The State had, and they violated it. 

Mr. MORTON. The State bad not, by law, but only by usage. 

Mr. THURMAN. Congress bad never prescribed any rule. 

1\Ir. STEVENSON. · Nor the State either. 

Mr. THUR~1AN. Nor the State either. 

But, 1\lr. President, it is said that expulsion is tho remedy. Now, I 

want the attention of my friend from New York, [Mr. CONKLING,] who 

put Brother NoRWOOD through the greater and lesser catechisms both. 

He says, suppose a legislature should elect a man guilty of murder to 

the Senate of the United States-that was the question of my friend 

from New York-would he hold the election void because they bad 

elected a homicide T And, assuming that that must be answered in 

the negative, then he put the question, could we not expel that mur- derer T Would we allow bim to sit here among ns Y 

Mr. CONKLING. ·My friend will allow me to say that I did not 

put that question. 

Mr. THURMAN. I thought that was the question. 

Mr. CONKLING. If I can state the question without interrupting 

the Senator, I will do so. Mr. THURMAN. I will yield,· provided the Senator will state the 

question, and not make a speech. 

Mr. CONKLING. Only the question. The Senator from Georgia. 

put to us this case: suppose a man were indicted, after his election, 

tor bribery, of which he ha-d been guilty, and were convicted, and the 

record of his conviction were sent to ns, would it not be absurd to 

hold that we must admit him and then expel him Y In answer to 

that, I said, suppose, after his choice by the legislature, he had been, 

in the same way, by the same court, convicted of perjury, arson, or murder, and the record should be sent here, would it not be equally 

:1bsurd to admit him and then expel him; and yet, could we say be was not elected 'f 

Mr. THURMAN. That was exactly as I understood it, and I was just going to try t.> convince my friend' that the two cases are not paraBel, and that it would not be equa,lly absurd. Yon might very well 

say that if a legislature saw fit to elect a pirate, or a perjurer, or the 

like, we could not say that that would avoiu the election, because we do not find anywhere iu the parliamentary law that that has avoided an election. That does not go to the election itself; it is not part of 

8 

the reB gestm of the election. But now I put it to my friend if it 

would not look a little odd for us, (supposing the proof to be before us, when a m!i'n presents his credentials, that he obtained his 

seat by buying the legislature, by bribery-no question about the 

number: he bought enough, bought them all-and we have the un- disputed facts before us, would it not look a little strange for us) to 

pass at twelve o'clock in the day a resolution that the election·was 

valid, and that he be sworn in as a Senator, and at half past twelve 

o'clock expel him upon the ground that he had <lbtained his election by 

the very bribery of which the Senate had ample proof when, half an hour before, it permitted him to be sworn in 'i First, bold the election to be valid, notwithstanding the bribery, and, in the next breath, 

say although he ma,y be sworn in, he shall be instantly expelled be- cause of that bribery I It does seem to me that that would present a very odd state of case, and yet, if the Senate shall decide that bribery 

does not go to the election, we will be necessarily clriven to that au- surdity. I think it would require a good deal more metaphysics than common people possess to understand such a decision as that. I ca,n 

understand why men who want to buy seats in this body may like a doctrine like that, which puts them under the protection of the 

rule requiring a two-thirds vote to expel; but why anybody who reasons simply according to logic and truth can find it consistent to 

declare in one breath that the election is perfectly valid, and in the 

next breath declare that, on account of the very l'e& gestm of that 

valid election, we should expel the man whom yon have sworn in ten 

minutes before, I confess I cannot so easily understand. I can, indeed, 

comprehend it, but I cannot appreciate it. 

Mr. President, I have occupied far more time than I expected, and 

far more than I should have done but for these pleasant little questions and interruptions that have taken place, and which so enliven a dull speech that I am always happy to be interrupted in order that 

I may not wear out the patience of the Senate. Having stated all 

that I deem it necessary to say in vindication of the vote that I shall 

give in favor of the resolution reported by the committee, I loave the 

subject. 

1\Ir. CONKLING obtained the floor: 

l\fr. CARPENTER. Will my friend give way to a motion to proceed 

to the consideration of executive business 'l 

1\!r. CONKLING. Yes, sir. 

Mr. CARPENTER. I move that the Senate proceed to the consideration of executive business. 

The motion was agreed to. 

CO~Tl'EE ON TRA..."\SPORT.A.TIO~ ROUTES. 

1\Ir. WINDOM. While the doors are being closed, I ask leave to 

offer a resolution, to be printed and laid on the table : 

Resolved, That the Select Committee on Transportation Routes to the Sea-boartl 

be authorized to sit at such places as they may designate during the recess, and to investigate and report upon the subject of transport.'l.tion between the interior 

and the sea-board; that they h:tve power to employ a clerk and stenographer, and to send for persons and papers ; and that the expenses attending such investiga- tion ue paid out of the contingent fund of the Senate upon vouchers approved by 

the chairman of said committee. 

The resolution was ordered to lie upon the table and be printed. 

PAPERS WITHDRAWN. 

On motion of Mr. CLAYTON, it was 

Ordered, That .Tohn L. Buck have leave to withdraw his petition and papers 

from the :files of the Senate. 

On motion of Mr. CONOVER, it was 

Ordered, That Commodore Edward Middleton have leave to withdraw his peti· 

tion and papers from the files of the Senate. 

EXECUTIVE SESSION. 

The Senate thereupon proceeded to the consideration of executive 

business. 

After thirty-eight minutes spent in executive session, the doors were re-opened; and (at four o'clock p.m.) the Senate adjonrnecl. 

IN THE SENA.TE. 

WED~TESD.A.Y, March 19, 1873. 

Prayer by Rev. J. P. NEWMAN, D. D. 

'!'he journal of yesterday's proceedings was read and approved. 

;PROGRESS OF BUSThTESS. 

1\-Ir. WRIGHT. 1\fr. President, I desire to call up this morning, for 

consideration, the resolution offered day before yesterday by me, on the subject ofrules. 

The VICE-PRESIDENT. The question is on takfug up the resolution indicated by the Senator from Iowa. 

1\fr. DAVIS. What resolution is it f Let it be read for information. 

The VICE-PRESIDENT. It is a resolution offered by the Senator 

from Iowa, giving certain instructions to the Committee on Rules. 

1\Ir. DAVIS. I suggest to the Senator not to call up that resolution until the Senate is fuller than it is now. It is an important reso- lution, and I suggest to the Senator from Iowa. to call it up some time 

later in the morning, or to give notice that he will move to take it np 

at a certain time. 

•