1875. CONGRESSIONAL REOORD. 41 

other State under like circumstances; that is, when the candidates for 

governor and Legislature on two opposing tickets both claim to be 

elected, and neither has yet got possession of the .government, :tnd, to 

make the parallel entirely fair, when, in the opinion of the President, 

violence may be apprehended from the contest. This might occur in 

any State, as well at the Nort.h as in the South. Suppose it had 

occurred, as it might, in Michigan, at the last election, and, owing to 

the heated passions of the partisans on either side, and the frauds 

comm.itted at the election orin canvassing the votes, a similar difficulty 

existed in determining which candidate tor governor was elected; and 

while the dispute was still open, and neither candidate for governor had 

obtained possession of the office, a district court of the United States 

had assumed jurisdiction of the question in the same or any other way, fto decide who was elected, and undertaken to decide upon the' 

election of member~ of the legislature, and the President had sent 

the military to enforce this decision of the Federal court, and to place 

in power and sustain the candidate in whose favor the court had decided. While the people of Michigan might not object to the action 

of the military in preserving the lives of citizens against insurrection 

and violeTJce, would they be likely to recognize the validity of the 

government thus imposed upon them Y Would they be likely quietly 

to submit to itt The people of Michigan are a law-abiding people; 

but I· know them well enough to venture the assertion that it would 

take several regiments of soldiers to keep them quiet under a govern- ment thus imposed, and more than all the armies of the United States 

to make them love or respect it. 

They would see, as I know they do to-day see and feel, that the 

election of a State governor or a State Legislature was not to be deci<led, nor the St8.te government run or prevented from running, by 

the :fiat of a Federal court; and that even the Executive of the Federal Government had no right to decide the question for the State, or to institute or establish a State government for them. 'fhA argument here urged in behalf of Pinch back involves this very 

principle, a principle which would place in the band of the executive 

department of this Government tho right and the power to revolntionize every State government in the Union, and bind, not only the 

States, but both branches of Congress to :recognize that revolution. 

Such a principle cannot he sound. The arguments in favor of it 

ue<Tin in fallacy and end in absurdity. f have not mentioned these illustrations because I think our present Executive is likely or inclined to do anything of the kind. I have 

not the remotest idea or suspicion that he f1as any such design or inclination. I believe hejs just a.s clear from any such inclination as I am, or as· any other man can be. I am merely illust.rating the principle inv.olved; and my habit in pursuing a legal or judicial investigation is to follow the truth wherever that may lead me. And though 

I am as well eatisfied as I can be of anything which does not admit 

of mathematical demonstration, that the President ha had no wish or intention to usurp power which does not belong to hi.m, yet called 

upon, as he wasJ for prompt action for the S'llppression of apprehended 

violence and insurrection, and prompted by the humane motive of 

giving protection to the colored population, hundreds of whom had on several previous occasions been butchered in cold blood-a motive 

which does honor to the man, and in which I confess I sympathize 

with him-and without having all the evidence before him which we have before us, nor, as I think, the .best legal advice, it is not strange 

that be should have failed to see clearly the true principle involved, 

and that he should have erred, as any other man, under similar circumstances, might have erred. 

But looking, as I think the facts show that he did, upon the government he bad set up as merely temporary, until Congress should 

take the matter off his hands, and doubting, as I think he did, as to 

the validity of the Kel_logg government, he did what a wise and truehearted statesman should have done under the circumstances; be 

caJled upon Congress to make proper provision for the case, and take 

such measures as they should deem proper. And he has called upon 

them repeatedly from that day to this; but be has called in vain, and 

Congress has neglected to act. • In all this I see no evidence of that deliberate usnrpation or intention to establish an irresponsible despotism which has been charged, 

and I repel the charge as one of the extravagances of heated partisanship, which often leads men to believe what, in after years and 

upon due reflection, they discover to have been wild and absurd. 

But here and now we are endeavoring to discover and apply the 

true principle which should govern the question of· the admission of 

.Mr. Pinch back as a Senator; and if we are wise we shall act upon no principle which we should not be willing to see applied to our own 

States; for, as in the case of individuals, no man can violate the 

rights of another without endangering his own, so we, as the representatives of States and their people, cannot violate the constitutional rights of another State or its people without endangering our own States and our own people. 

In the mutations which are constantly taking place, and must continue to take place, in this and every other popular government, the 

time may come when our present positions may be reversed, and when 

those now in a minority may hold the power of enforcing their own views of government; and the poisoned chalice we now present to 

the State and people of Louisiana may be commended to oar own lips. Let us, therefore, disregard all mere partisanship, and act upon 

the broad prinmple of equal justice, which is the highest statesmanship, and refuse to establish a new and, at least, a questionable principle, which may return to plague the inventors. I have bnt one more point to notice. It has been gravely urged 

here that Louisiana, being ent itlecl to two Senators upon thi~ floor, it 

is a wrong to the people of that State to refuse them the enjoyment 

of that right; and therefore we ought, in orcler to avoid this wrong 

to the people of that State, to admit Mr. Pinchback. Now,accordi g 

to my reading of the reports recently made to the House by both the 

majority and the minority of their committee, the majority of the 

people of Louisi8.na are opposed to the Kellogg government, and to 

Pinch back as their representative in the Senate; and they would, 

of course, prefer being unrepresented to being misrepresented; they are not, therefore, likely to complain of any specin.l grievance arising from his rejection. 

REPORT ON ALLUVIAL BAS:lli OF THE MISSISSIPPI. 

Mr. ALCORN submitted the following resolution; which was re- ferred to the Committee on Printing : 

· .Resolved, That five thousand copies of the report of the commission of engineers 

appointed in compliance with the act of Congresa ap.Proved .June 22, 1874, to inves· ti~ate ancl report a permanent plan for the r eclamation of the alluvial basin of the 

Mississippi River subject to inundation, be printed for the use of the Committee on the Levees of the Mississippi River. · 

COMIDTIEE SERVICE. 

M:r:. RANSOM, on his own motion, was excused from further service as a member of the Committee on :Military Affairs. 

Mr. GORDON, on his own motion, wa-s excused from further service as a member of the Committ-ee on Commerce. 

By unanimous consent, it was 

Ordered, That the v~WaUcies be. filled by the Vice-President. 

The VICE-PRESIDENT appointed Mr. RL~soru: to :fill the vacancy 

upon the Committee on Commerce, and Mr. GoRDON to :fill the vacancy 

upon the Committee on Military Affairs, each Senator to occupy the 

relative position on the committee which was held before the vacancy 

OCCUlTed. 

EXECUTIVE SESSION. 

Mr. CAMERON. I move that the Senate proceed to the consideration of executive business. 

The motion was agreed to; and the Senate proceeded to the con- sideration of executive business. After one hour and :fifteen minutes 

spent in executive se sion the doors were reopened, and (at three 

o'clock and forty minutes p.m.) the Senate adjourned. . 

IN SENATE. 

SATURDAY, March 131 1875. 

Prayer by the Chaplain, Rev. BYRON Sm.'DERLAND, D. D. 

The Journal of yesterday's proceedings was read and approved. 

SE.~: ATOR FROM LOUISIANA. 

The Senate resumed the consideration of the following resolution, 

submitted by .Mr. MORTO on the 5th instant: 

.Resolved, That P. B. S. Pinch back be admitted a.s a Senator from the State of 

Louisiana for the term of six years, beginning the 4th day of March, 1873. 

Mr. EDMUNDS. I move to amend the resolution by inserting the 

word "not" before " admitted." If it is amended in that way I think 

I can vote for it. 

The VICE-PRESIDENT. The question is on the amendment of 

the Senator from Vermont. 

.Mr. EDMUNDS. I believe the understanding was that we were not to vote to-clay, so that I hope the Chair will not put the question. "The VICE-PRESIDENT. The Chair awaits a motion. 

Mr. THURMAN. I had no expectation of making a speech this 

morning; but upon this que tion of Pinch back I think each of the 

old Senators here mightadoptforhis motto sentperpa1·atus. We have 

heard the thing discussed up hill and down hill, and in every other 

way or direction in which a man can go or look. As there seems to 

be no one ready to proceed, I will say a. few words by way of taking 

my farewell leave of the subject. The chairman of the Committee on Privileges and Elections, [Mr. 

MoRTON,] in t he elaborate speech by which he supported there ·olution he ottered, and which was in effect the same speech made·by him 

at previous sessions of the Senate, laid down three propositions upon 

which his conclusion is based. The :first proposition was that Pinchback's credentialB make a pt•ima facie case and entitle him to his seat 

until ousted on an investigation. The second proposition was that 

the Senate is bound by the decisions of the supreme court of Louisiana recognizing Kellogg as governor and the body that elected 

Pinchba.ck as the Legislature. His third proposition was that the 

Senate is bound by the President's recognition of Kellogg a.s governor 

and said body of men as the Legislature until Congress shall reverse or overthrow that recognition. 

I propose to say something upon each of these propositions, and as briefly as I can. In support of the :first propo ition, that Pinch back's 

credentials make a 11rima facie ca _ e, enti tlin~ him to be seateu until 

ousted upon an investigation, the Sena.tor 1rom Inuiana speaks of 

• 
• 

42 CONGRESSIONAL RECORD. MARCH 13, 

the usa,ge of tho Senate and quotes the remarks of various Senators, 

and among other some remarks made by myself when Goldthwaite's -case was before the Senate. Those remarks were these : 

Mr. THURMA.N. The Committee on Privileges and Elections, in accordance with 

tho universal practice of this body fi"llm tht) fonnuation of tho Government to this 

day-a practice that has nota sing1e exception-reported that the credentials of this 

gentleman b ing correct, and he having: been elected by a body competent to elect, 

he is prima facie entitled to his seat anu to be sworn in. 

When I said that I was speaking of a ca e like Gol1ltbwaite's. I was not speaking of a case entirely different from Goldthwaite' . I was speaking of a ease in which there was no question of the competency of the per on elected to hold a seat in this body, no question as to the body of men by whom be was elected being the Legislature of 

his State, no question as to the right of the person who gave his cer- tificate to be the governor of that State. It was therefore a case in w llich there was but one governor, there was but one Legislature, aml 

there was no question as to the title of the governor or the title of tho 

Legislature, and as to the inclividllal himself no question whatsoever 

but that he was qualified undertbeConstitutionof the United States 

to bold his seat, and no question further that he was elected at the 

proper time and that he was elected in the manner required by the 

Constitution and by the laws. In respect to cases of that sort I aid 

that the u age of the Senate was without exception to seat the mem- ber and hear the conte t afterward. It is possible that I made the statement too broadly, although I am not satisfied yet that I did. It might eem that the ca e of Thoma , of faryland, wa an exception to the genemlity of the rule which I 

then stated, for Thomas was not allowed to mke his seat although 

he was elected by the undoubted Legislature of Marylaurl at the 

proper time aud commissioned by the proper executive. But that was a peculiar ca e. Thomas was not allowed to take his seat upon 

the ground that be could not truthfully take the oath of office. It was upon that sole and distinct ground that be conld not truthfully 

take the oath of office. I have always thought, and I think the Senate 

if it had to decide the matter now would say that that decision wa enoueous ; but at all events the Senate saw fit to go into the inves- tigation and determined that, inasmuch as in the opinion of the Senate the acts with which he was charged amounted to aiwng anll 

abetting the enemy, herefore, aceording to the true intent and mean- ing of the iron-clad oath as construed by a majority of the Senn,te, 

whatever Mr. Thomas might think of his own conduct, however little he 

might think t)l!).t that was aiding and abetting the enemy, the Senate 

decided for him that the acts of which he was conf eilly gnilty_:_if 

that term can be applied to them- were aiding and abettingthe ene- my and that therefore he could not take the on,tb of office; antl 

hence he was excluded. But it is immaterial to considar whether I made the statement too 

broad or not. I can stand upon it precisely as I made it; but it has no application to this case. I said : 

The Committee on Privileges and Elections, in accordance with the universal 

pra.ctice of this body from the foundation of the Go,7 ernment to this day, a pra.c. tice that has not a sin_gle exception, reported that- the credentials of this gentle- man b-eing correct and he having been elected b.v a bouy competent to elect, he 

wasprim.ajacie.entitleu to his seat and to be sworn in. 

1\!r. President, how different is tills ca e! Here it is begging the 

very que tion to say that Piuchback was elected by a body competent to elect. . Mr. MORTON. The part the Senator now r ead was in a subse- quent part of the debate; it is not a part of the speech I quoted. It 

was upon the report being made by the committee of which the Sen- ator was a member at that time. · 1\Ii·. THURl\iAN. I do not know whether it is from the same part or not, bnt this is the statement I made. fr. MORTON. That is in a subsequent speech. Mr. THURMAN. It does not matter whether I made it one day or another day. Thn,t was my position. The vice of the argument of 

the Senator from Indiana is that it begs the question. It assumes t hatKelloggis governer, and that thereforePinchhack'scredentialsare 

pTinw facie evidence. It a umes that the Legi ·lature that elected 

Pinch hack wa.s the true Legi 'lature. Both of these are assumptions 

which the Senat r has no right. to make; and therefore this case is 

not at all in the same category with the c;;t e of Goldthwaite or tho e of which I spoke. The Senate, however, as ha been shown, ~-s 

repeatedly kept Senators out, and especially it. kept Goldthwaite out 

for a year and it kept Ransom out for a long time, I think for nearly a year. Mr. MORTON. Myfrieud will allow me to suggest right t here that 

the Ransom case was referred to by the Senator from North Carolinal ~!r. MERRil\:ION.] I a k him if be refers to that as a case in point r 1\lr. THUR. fA.J.~. Ran om wa kept out. Why was he not seated' 

Mr. MORTON. Will the Senator allow me to stat~ that in the 

Ransom ca e there bad been a previous election of Vance, and the 

(}ne tiou was whether there wa a vacancy. It was conceded that 

Ransom's credentials showed his election and pri1na facie entitled 

him to a seat ; but the fact of his credentials being iu proper form 

did not determine the que tiou whether there wa a vacancy. Vance 

bn.d before been duly elected, but Vance was ineligible under the 

fourteenth amendment, and he never pre ented his credentials to this 

body and never came here; but that fact of his election wa known, 

aud when Ransom came here with his credentials, it was urged that 

there was no vacancy for him to fill. It was never preteudeu that the 

credentials being properly signed would determine the question of a vacancy. That is an entirely different question. It was admitted. 

that the credentials determined the question of election provided 

there was a vacancy; and after a long consideration it was determined that there was a vacancy, Vance never having pre. ented his. 

credentials and. })eing confessedly ineligible under the fourteenth 

amendment. :.Mr. THURMAN. I do not see how that alters the case in the slighte t degree. There was a vacancy from North Carolina at one tim6 or another, and the question was, is Ransom elected to fill t.bat 

vacancy, or is Abbott elected to fill it It was a question therefore' 

of conte t between those two persons. One had the commi ion, thoother had none; and upon the theory of the Senator from Indiana 

Ransom should h ave been seated. But I do not care ::tbout that, fol'" 

I do not want to speak on the e questions. In fact it will be 'ound 

tbat in numerous ca es where there was more than one cl"aimant the 

Senate has refused to seat either until an investiga.tion. Such was the case of Hill and Blodgett and of Miller and Farrow. Hill claimelt a seat as Senator from Georgia; so did Blodgett. Miller claimed a seat as Senator from Georgia; so did Farrow. Here were two claimants to the same seat in each of tho e cases. So in the case of Spencer vs. Sykes Spencer was not seated at first. Mr. MORTON. He was eated within two weeks. Mr. TllUR:HAN. It doe not matter. We had no right to exclud·e him, according to the Senator's argumep.t two minutes. 

Mr. MORTON. He was admitted. The Senate kept right on and 

determined the question iu less than t en days, ancl bo was seated ex- pressly on the ground that he had a p1·inw facie ca e. Mr. THURMAN. If the Senator wants to make his speech over- again in t he midst of mine I have no particular objection 1 but the 

tmth about it is that, so far as the law i concerned, so far as the 

legal principle is concerned, his exclusion for two minutes was as good as his e:s:clu ion for two years. Yoll had no right to excluue 

him for two second if the Senator's doctrine is couect. 

Mr. :MORTON. ·we had not. 1\fr. THURMAN. .A.ull then here is Pinchback himself; and you 

have kept him out for two years, aJthough you say he had a prima 

facie case; and the Senator from Indiana him elf, after be made his. 

first report, had it sent back to his committee to in>estigate Pinchback aud find out whether he was rightfully elected. But that is not 

all. 

.A. conclusive answer to the Senator's position about a p1•f'ma facfe 

case is that the Senate bas not seen fit to seat Pinchback on a prima 

facie ca e, but has seen fit to take the otlier coursQ aml have an investigation; and the moment you have an investigation ~nd have 

the facts before you, all questions of prima faci e!J vanish at once. When you have the evidence before yoll, hen you are compelled t~ 

decide upon the merits, in every c~urt and in every legislative borly. It is useless to talk now about 11rima facies after the Committee on Privileges and Elections have investigated thi matter for months, 

have laill before us a body of te timony amounting to a thousand or more pages, have reported their conclu ions upon that testimony, 

every qlember of the committee giving his conclusions. After all 

this, it will not do to say that it is a question of prima facies a11y more. It is a que tion now upon the merits. Why, how abslll'd would 

it be to scat Pinchback upon what is called a prima facie ca e, a.Ild 

then upon the very evidence which we have before us to turn him 

out of his seat the next day if a majority of the Senate believed that 

upon that evidence he was not entitled. And yet that is what the 

propositiorr of the Senator from Indiana would come to. No, sir; 

that will not do. 

But in the next place, as I have said before, the proposition begs the 

question; it assumes that Kellogg was governor when he signed the 

credential . We have a right to consider that question; we must 

consider it. If Kellogg was undoubtedly the governor at the time 

he signed those credentials, then there might be some foundation for 

the argllment of the Senator in ca e there was nothing else before us than the c;redeJ;ltials ; but, the whole ca e being before us, we are bound to decide whether Kellogg was the governor; and if we find 

that he wa not, then his co.rpmi sion goes for nothing at all. And 

if we decide that he wa then the governor, that still does not settle 

it, because the question still comes before us, wa the body of men l1y 

whom Pinchback was elected the ln,wful Legislature of the State Jf 

Louisiana So that two things have t o b e established here ; fir t, 

that this man was elected by a lawflll body constituting the true 

Legislature of Louisiana; and, ecoudly, that he has the commission 

of the executive of that State. If he has not that commi sion, then 

be is not entitled upon it, however much he might be ntitled if the 

evidence in the case showed that he was elected by he lawful Legislature of that State. Now, was Kellogg then governor of that State 7 .At the ri k of 

being a little tedious, I shall refer to the finding of your committee, 

and I llo not detlm it nece sary to refer to more than this finding, 

although it h as been referred to so- often. On pages 43 and 44 of the 

report your Committee on Privileges ancl Elections say : 

Indeed, it is impossible not to see that this bill was filedThat is, the ~ntoine billand there training order thereon was i sued for the sole purpose of accomplishing 

what no Federal court ha.e the jurisdiction to do, tho organization of a State Legis· lature-
1875. CONGRESSIONAL RECORD. 43 

This Legislature by which Pinchback was electedAnd your committee cannot refrain from expressin" their ast-onishment that any judge of the United States should thus unwarranta.bYv have interfered 1'ith a. State 

government, and lmow no language too strong to express their condemnation of 

such a proceeding. It is the opinion of your committee that but for the unjustifiable interfer ence of 

Judge Durell, whose orders were executed bv United States troops, the can.-ass mado by the De Feriet board, and promulgated ·by the governor, declaring McEnery to have been eleoteu governor, &o., and also declaring who had been elected to the Legislature, woulu ba.ve been acquiesceu iu by the people, and that government 

wotl.ld have entered quietly upon the exercise of the sovereign power of tho State. But the proceedings of .Judge Durell, and the support given to him by United 

States troops, resulted in establishing the authority de facto of llo~g and his a sociates in State offices, and of the persons declared by the Lynch ooard to be 

elected to the Legislature. We have already seen that the proceeclings of that 

board cannot be sustained without disregarding all tho principles of law a.pplicable to the subject, and ignoring the distinction between good faith and fraud. Your committee are. therefore, led to the conclusion that, if the election h eld in 

November, 1B72, be not absolutely void for frauds committed then•in, McEnery 

and his associates in State offiees, and the p ersons · certified as members of the ~gi lature by the D e Feriet board, ought to be reCO!!Dized as the legal govern- ment of the State. Consiflering all the' facts establit<hed before your committee, 

there seem no escape from the alternative that the McEnery government must be recognized by Congress, or Congress must provide for a re-election. 

Nothing can be clea-rer or more positive than that your committee 

fonnd that either there was no valid election at all, or if there was a valid election that IcEnery and his associates were elected and the 

members returned by the DeFeriet board were elected to the Legisl ature. They find the issue fa.irly and squarely against Kellogg, and 

fairly and squarely against the body of meu calling themselves the 

Legislature that assumed to elect Pinchback. There is no equivocation about this finding ; there is no double sense about it; and there 

is no way of construing it uut one way, and that is a clear and distinct finding that McEnery and his a ociates were elected to the 

executive offices, and that the McEnery legislature was the true Leg- i latnre elected, or that there was 110 election at all, and con equently 

that Kellogg never was elected and that the body calling them elves 

the Legi Iature who a umed to elect Pinchuack never were elected 

and never were the Legislature; so that the evidence completely 

overthrows the assumption of the Senator from Indiana that Kellogg was governor au.d that the body of men callin~ themselves the Legislature that·elected Pinch back were the Legislature. 

I need not go into the matter of the canvas of the Lynch board at 

any length. The committee have saved me all that trouble; and yet as t,here are some Senators who perhaps have not had their attention 

called to it, I beg leave to read a little from the finding of the com- mittee on that subject. · 

On the 6th of December, 1872, the Lynch board- Bovee, (who was then acting as secretary of state in place of Herron,) Lynch, Longstreet, and Hawkins- pre- t<>ndell to have canvased tllereturnsof the election, anllcertified to thesecretnry of state that Kellogg had been elected governor; Antoine, lieutenant-governor; Clinton, auditor, Field, attorney-general; Brown, superintendent of education; and De londe secretary of state; and also certified to a list of persons whom they had 

determined to be elected to the Legislature. 

There is nothing in all the com-edy of blunders and frauds under consideration more indefensible than tho pretended ca.nvass of this board. The following are some of the objections to the valitlity of their proceedings : 1. The board had been aboHshed by the act of November 20. 

2. The board was unuer valid and existing injunctions restraining it from act- in~ at all, and aq injunction in the Armstead case restraining it from making any canva s not based upon the official r eturns of the election. 3. Conceding tb9 board was in eri tence., and had full authority to canvass the rt'turns, it had no r eturns to canvnss. The returns from the pari b s had been made, under the law of 1870, to the gov- ernor, and not one of them was before the Lynch board. It was testified before your committee by Mr. Bovee himself, ....-ho participated ~this canvass by the L:vnch bo<~.rd, that they were determined to have a. republi- can L~gisla.ture, and maae their canvass to that end. The testimony abundantly e:~tabli hes tho fraudulent character of their canvas.s. In orne ca. es they had what were supposed to be copies of the original returns, in other cases they bad nothing 

but newspaper statements, and in other case , where they had nothing whatever to act upon, they made an estimate based upon their lmowledge of the political com- pl exion of tho parish of what the vote ought to have been. They al o counted a large number of affida.vits purporting to b sworn to by voters who had been wrongfully denied re!ri.stration or the right to vote, many of which affidavits they must nave lmown to \Je forgeries. It was testified by one witness that be forged ov r a thousand affidavits and delivered them to the Lynch board while it was in se sion. It is quite unnecessary to waste time in consid rin~ this part of the case, for no person can examine tho t estimony ever so cursorily Without seeing that this pr tended canvass had no· semblance of integrity. 

Now, Mr. President, nothing that I can say can add force to that 

finding of your committee. There are other parts of this report in 

which the question is argued and in which it is pelfectly demon- strated that the Lynch board had not one shadow of legal existence, 

and the board itself admitted that it had not one single official return 

before it, but it determined to count in a republican majority to tha.t 

Legislature. So Bovee swore before your committee. And in order 

to do it the men composing it took newspaper reports of the elec- tion; and where they had no,t even such authority as that they took 

their own personal knowledge of what they thought were the poli- tics of the parishes and returned a vote according to the personal 

knowledge of what were the politics of the parishes wholly irrespective of whether there bad been any voting in the pari she or not; and 

finally to eke it out they counted as votes, without any authority of 

law whatsoever, thousa.nds of affidavits mo t of which were plain and 

flagrant forgeries, and known to that board to be such. And yet, sir, 

it is upon the returns made by that boarcl tliat it was claimed that · Kellogg h ad a right to be governor and that the men sitting in the 

body that elected Pinchback were duly elected members of the General Assembly of th::~t State. Here then was a board that had no law- ful existence, a board that had no lawful returns, a board that avow- edly deteb.nined to count in the republicans no matter whether they were elected or not, and t hat in order to count them in counted thou- sands of forged affidavits and made returns from parishes upon their own knowledge of what were the politics of the parishes without any r egard to the votes at all. Sir, nothing more need be said about that. 

It was.the list of men certified by that Lynch board-or not all of 

them, for they had to certify some conservative - but it was the list 

of republican men certified by that Lynch board that elected Pinchback. How came they to get possession of the State-house f How came they to get any apparent authority to act This report finds 

all the facts. It was by the orders of Durell that they were enaulell 

to do it. In the first place, upon Kellogg's bill, which was a, simple 

injunction bill, Durell undertook to restrain what was called theWarmoth board from counting the votes at all. But tha.t did not 

succeed. The governor signed an act of the Legislature on the 20th 

of November, 1872, under which the DeFeriet board was appointed. 

It was necessary then to do something else, and thereupon Antoine 

filed his bill in Durell's court; Ant-oine having no more right to ask 

the intervention of the Federal court to determine the question of 

who were members of the Legislature than you or I had, sir, and that 

court having no more jurisdiction over that question than you or I 

had. Yet, that bill being filed, Durell made that famous midnight 

order out of court, not sitting as a court, without the partie., before 

him, uucler which in less than two honrs the State-house was seized 

by the Army of the nited States, and, according to the term and meaning of that order, not a mau was allowed to so in there and take a seat in that Legislature unless he was returned by the fraudulent 

Lynch hoard. That all appears before us. How can you call that a Legislatnre How is it po sihle to call that a Legislature f Why, 

sir, what did your own committee fincl in regard to these orders of 

Durell The committee say on page 17 of the rcpol't : 

It is impossible to coneeive of a more irregular, illegal, and in every way inexcusable act on the part of a judge. Conceding :the power of the courtThat is, only conceding for the question, not as an actual factConceding the power of the court t~ make such an order, thejutl.,.e, out of court, 

had no more aut.hority to make it than had the marshaL It bas not even the form 

ofjudicial11rocess. It was not sealed1 nor was it signed by the clerk, and hull no more legal effect than an order issued oy any private citizen. There had been no amendment of the bill of complaint. The law of Novomuer 20 had been promulgated. The De Fori t board bad been appointed in pretended pursuance thereof. Whether, under the constitution, the governor bad tbe power, in the .-acation of the Legislature, to appoint that board, u_pon the ground that the act of ~ovember 20 crea,ted offices, and therefore vacancies in office, your com- mittee <lo not inquire. But it is understood that the constitution has been o con- strued in that State, and that .Judge Dibble was appointed by the governor under 

similar circumstances. 

The DeFeriet board, therefore, had color of official existence. Their can.-a.ss was completed, aml the result promulgated under color of the State law, an<l it is clear that this gave the Federal court no more right to seize the State-house than to seize this Capitol. 

The De Feriet board, a board which had color of legal right ancl 

which according to the interpretation placed upon the con titution 

of Louisiana in Judge Dibble's case was a la\\~nl boar9, had made 

its list, and that list had been promulgated according to the laws of 

Loui ian a, and that list showed that the McEnery legislature wa the 

true Legislature, that the conservatives who sat in what was called 

the McEoory legislature were the men who were elected, and that 

those republicans who sat in the Kellogg legislature under the count 

of the Lynch board were not the true men ; some of them of course were correctly returned, but the men who claimed sev-ts there again t 

the conservatives and were given those seats by the Lynch board were not elected. AU that appeared by the return of the De Feriet 

board. And yet, sir, under this order made at twelve o'clock at 

night not one of those men of the conservatives thus reported to be 

elected by the only board that had color of legal existence was per- mitted to enter that Sta.te-house unless he was also upon the return 

made by the Lynch board. The committee go on to say : 

The marshal, on r eceiving this pretended order, called for a detachment of 

United States troops to act as a posse comitatus, seized the State-house at two a. m. of December 6, and held it for weeks. 

Held it until the usurpation was completed. But, sir, that is not 

all that is said of these orders. On page Z7 the committee say: 

. Viewed in any light in which your committee can consider them, the orders and 

injunctions m:u.le and granted by .Judge Durell in this canso are most reprehensible, etToneons in point of law, and are wholly void for want of jurisdiction; and your committee must express their sorrow and humiliation that a · ju.do-e of the Unitecl States should have proceeded in such fia~-ant disregard of his d'uty, and 

have so far overstepped the limits of Federal jurisdiction. 

That is the findino- of your committee 1l,POn these orders. What 

said Senator Trumb~l, one of the committee, upon the subject¥ I 

will read that presently; but first what said the Senator from Inqiana, the chairman of the committee, in regard to these orders of 

Durell Y The Senator from Indiana said in his report: 

TI.Je conduct of .Judge Durell, sitting in the circuit court of the United States cannot be justified nor ilefended. He grossly exceeded his jurisdiction, and assume([ 

the exercise of powers to which be could lay no claim. * .. .. But the pretense that in a suit to perpetuate testimony the court could go "beyond 

the natural and reasonable jurisdiction, to decide who cono;tituted t.lle legal rt:tnrn- in~ hoard under the laws of Louisiana,, and to en force the rights of such as it wight 

determine to bo members of that board ancl to enjoin others who were not, is with- out any foundation in law or logic. 

• 
44 CONGRESSIONAL RECORD. MARCH 13, 

That is what the Senator from Indiana said about that decision of 

Judge Durell. He went on fllliiher to say: · 

In the Antoine case .Judge Durell not only assum;d to determine who constituted 

the legal returning board, out to prescribe who should be permitted to take part in 

the organization ot the Legislature and to enjoin all persons from tal..-ing part in 

such oro-anization who were not returned by the Lynch board a elected ; and this a sump'f.ion of jurisdiction was made in tho face of the express provision in the act of 1870 that its benefits should not extend to candidates for electors, for Congresa, or fl'r the State Legislature. His order issued in the Kellogg ca e to the United 

States marshal to take posses ion of the State-house for the purpose of preventin« 

unlawful a emblaqes, under which the marsha.l called to his aad a ~ortion of the 

Army of the Unitea States as a. posse comitatus, can onlybecharactenzed as a gross 

usurpation. 

That is what the Senator from Indiana said upon this subject as chairman of the Committee on Privileges and Elections; p.,nd yet, sir, 

,.it was the men who were put in that State-house by this gro s usur- pation of this judge thus denounced by the Senator, it was the men whom this judge det.ermined without any right were members of the 

Legislature of Louisiana and who were seated there by the Federal 

Army who constituted that body which assumed to be the Legislllr 

ture and elected Pinchback whose right to sit h~re the Senator now defends. 

.Mr. MORTON. I take it for granted the Senator does not intend 

to misrepresent me. Mr. THURMAN. Certainly not. 

1\Ir. MORTON. If not, then he will read in connection what I there 

said about the effect of Durell's action, or if the Senator will permit me I will read the extract. Mr. THURMAN. I have no objection although it is prolonging my 

speech. This idea of sticking one speech into another I do not think 

is proper; but I will not object. 

M.r. MORTON. I go on to say: 

But conceding all the facts in regard to .Judge Durell, the question arises how 

they affect the l~a.l rights of the parties and the actual status of the Kellogg goY· erument. '.rhe Lynch returning board has been decided by the supreme cow'tof 

the tate to be the legal one, and the other boarda, 1.'"D.own as the 'Vharton tho 

Do Feriet, and the Form 1.n boards, to have been without any authority whate er. llas the legal character of that board been impaired or vitiated by the illegal int.erference of .Judge Durelli Conceding tlmt interference to have been in 

every way wrongfttl, would it have the effect to vitiate the title of the Lynch re· tnrnmu board as determined by the supreme court of the State 1 I think not. A. 

title whlch the highest legal tribunal has declared to be good is not impaired by unlawf1.1l interfer nee, even by violence in its support. And the case stands thus: 

that the circuit court of the United Sta.teil has unlawfully interfered to do certain 

things which the highest tribunal of the State decides to be lawful and proper in 

themselves. The supreme court of the State having helcl that the Legislature was the lawful one which was organized by the admission of such persons only as were returned by the Lynch board as elected members, is the legality of that organization affected by the fact that, the circuit court of the United ~tates interfered to prevent the organization of a. Legislature by persons who were not returned as elected by the Lynch board 7 If an officer in the performance of his duty were aided 

by a mob, the performance would not be made illegal by the presence and co·op· 

eration of an unlawful assemblage. 

That is my answer. Mr. THUR~. Now the Senator hM only anticipated my argu~ 

ment when I shall come to consider the effect of these decisions of 

the supreme court of Loui iana. I was not on that point when the 

Senator interrupted me; I was on the question whether or not we had a prima facie ca-se here, and showing that we could not 'have a prim,a facie case unle s Kellogg was the governor and u~ess the body 

that elected Pinchback WM the Legislature; and in showl~Jg that I 

very properly called attention to the universal condemnation by the 

committee, every member of it, including the Senator himself, of 

those acts which resulted in organizing tbe body of men who assumed 

to elect Piuchback. Whether the decisions of the supreme court of 

Louisiana settle t.his question is another inquiry, and to that I am now ready to address myself. 

The Senator made that same argument before; he has made it I do 

not know how many times; he made it to his committee; it is in his 

minority report. And now, first, what did the committee itself, the 

majority of the committee, answer to that argument of the Sena- . tor fi·om Indiana-indeed, every member of the committee but 

t.he Senator him elf f What did they say in reference to this very 

point which he now makes f I have something to add to what they 

said, but first let us see what they said. On the question of the 

effect of the decision of the supreme court of Louisiana the committee say: 

But it has been claimed before your committee that a decisiou of the supreme court of Louisiana, rendered since this investigation commenced, has determined 

that the Lynch board was the legal returning ooard at the time it pretencled to canvass the votes, and it is urgecl that a whole orne regard for the ri«hts of the 

State precludes the Senate from investig<tting this subject back of tb at decision ; that the canvassers were a board of officers created by the tate law; an<l that the 

decision of the supreme court having determined that the Lynch board was the 

legal board, the United States is estopped by that decision D>nu the canvass made 

by that board. To this there are three answers : First. The supreme court, in the case referred to, is understood not to have had 

any testimony before it showing the character of the proceedings by the Lro:ch 

board, which testimony is before your committee very fully. Fraud vit1ates 

everything, and it is certain that no court, upon the testimony before your com- mittee, could hold the canvass by that boanl to be valid. 

Second. In the opinion of your committee the supreme court had no juriscliction of the case in .which they made the decision. The judgments of every court, the most exalted m character, are absolutely void if rendered without jurisdiction. But this point will be consiclered more fully hereafter. 

Third . .But for the interference of .Tuclge Durell in the matter of this State election, a matter wholly beyond his jurisdiction, the McEnery .,.overnment would to- day hM·e boon the de facto government of the State. .Judge Durell interpo eel the 

A.rmyof t~e United States between the people of Louis~na a.nd the only govern. 

ment which has the semblance of regularity, and the result of this ha been to establish the Kellogg government, so far as that State now has any IJOVernment .. For 

the United States to interf~re in a S~te election, and lly the emplOyment of troops 

setup a governor aml Legislature Wlthout a shadow of right, and then to refuse 

redress of the wrong, upon the ground that to grant relief would be interferin.,. with 

the rights of the State, is a proposition difficult to utter with a grave counte~a.nce. 

What does your committee find f Fir t, that the supreme court o:f 

Louisiana had no jurisdiction of the question; that the opinion ex- pressed was a simple obiter dictum,, which bound nobody; and, in the 

second place and very truly, that the Senate of the United States 

could not be bound by any judicial decision of that State upon tbe 

subject. What is the reason why the deci ion of the State court can- not bind the Senate f First, because the Senate is the sole and exclusive judge of the elections, qualification , and returns of its own mem- bers, and that includes jurisdiction to decide every question, I do no-t care what it is. · 

Mr. MORTON. Will my friend allow me to ask a question 'f 

~Ir. THURMAN. I would rather the Senator would not interrupt me right in the midst of a proposition. ~Mr. MORTOX. Before he leaves that point. 

Mr. THURMAN. I say that ~ives us jurisdiction to decide every 

question upon which our determrnation depends; and we cannot sur- render that power. We cannot surrender any power that the Constitution confers upon us. Now, we being the sole and exclu ive 

judges of this question, are we bound by the decision of any other tribunal, however exalted f No, sir; and for the simple reason that· no court is bound by the decision of any other court unless the latter 

court can reverse the decision of the former. The decision of one court may be a precedent in another court, but it is not authority un- le s the court that renders that decision bas power to reverse the decision of the court whose opinion is in question. L t me give an illustration. Upon a que tion arisino- under the Constitution, laws, or treaties of the United States the decisions of the Supreme Court 

of the United States are binding upon the judiciary, whether Federal or State, throughout the whole length and ·breadth of this land. 

Why so f Why are those decisions authority-mark the word "authority "-in every inferior court in this land, be it Federal o; be it 

State f Because the question can be carried to the-Supreme Court 

of the United States and the decision of the State court or of the inferior Federal court can be affirmed or reversed, and that makes 

the decision of the Supreme Court of the United States authority. 

Bnt take a question not arising under ths Constitution, laws or tre~ties of the l!nited State~-take an or~in3:ry commercial question 

which bas nothing to do with the Constitution, laws, or treaties of t~~ United State ; no Stato court con iders itself bound by the deCISions of the Supreme Court of the United States. There is not a State co~r~ in all th~s Union t~at would consider ~tse~ bound by any such decision. It Will respect It as a precedent ; 1t Will con ider the 

opinion of that high tribunal entitled to great weight; but if its own opinion is adverse, it will hold to its own opinion and make a con- trary decision. The books are full of such case . This has beeu 

carried so far tb:tt where ari inferior court has sole jurisdiction in 

divorce cases, a deci ·ion by the supreme court of the same State upon ~he iJ?-terpretation of the div?rce statute _was not held binding in the 

mfenor court upon the questwn of granting a divorce or not for the reason that the decision of the inferior court could not be re...;ersed in 

phe superior court. Applying this well-known principle, known to 

every man who ever sat on the bench, known to every lawyer who ever practiced. at the bar, it is in the nature of things impo sible that 

there can be any judicial tribunal in this countJ:y who e decisions are binding upon us when considering the question of the election quali- fica~ionJ and return of our own members. Those decisions ~ay be 

entitled. to great respect; they have what has been called per ua~ive 

power;. they are entitled to weight-not in this case, for these decisions are entitled to no respect at all, as I could show if I were to go into 

the matter; but the decisions of courts usually are entitled to respect 

and to have a pers uMi ve pow or though they may not bind as authority. 

But s~ far a~ bindinf? us is c~l'lcerned, all the courts in this world can- not bmd us upon th1s question; and when I say "cannot bind us,'~ 

I do no~ mean that we have the brute power to vote "nay" or to vote "yea'~ m t~ Chamber, bnt I say, speaking as a constitutional lawyer, 

there IS no tribunal under heaven that has any authority over us or can bind us upon any question when we are deciding upon the elections, qualifications, and returns of our own members. 

Mr. MORTON. Let me ask this question: Whether the Supreme 

Court of the United States have not decided in many cases that they 

will follow the deci ion of the supreme court of the State upon all 

questions arising under the constitution and laws of that State and 

not involving any question arising under the laws or Constitution of 

the United State f If the question arise under the laws or Con titution of the United State , then the Supreme Court of the United 

States will not follow the decision of the court of the State, but will 

lay down the law for it elf; but if it arises entirely under the law of 

the State or the constitution of the State, then the Supreme Court 

of the United States in all cases follows the decision of the supreme 

court of the State. ~h. THURMAN. The Senator has been so long from the bar that 

he has got very rusty, prodigiously rusty, [laughter,] or be never would make any such bol<l assertion as that. I can show him case after case, and case after case down I believe to tho last term of the 

Supremo Court of the United States, in which they have refused to 
1875. CONGRESSIONAL RECORD. 

follow the decision of the highest court of the State. What did they 

do in the Bank case from my own State, a case of the first importance! There the supreme court of the State of Ohio had unanimously decided that under the constitution and laws of the State of 

Ohio the General Assembly had a right to levy a tax upon the banks 

beyond that tax on their dividends specified in the charter. What 

did the Supreme Court of the United States say to that decision f 

They said "we will not be bound by that decision;" they said "there was a decision many years ago, a decision before these banks had an existence, which was the other way, and we will follow this latt~r 

decision; but we will decide this question for ourselves.'' What dtd 

they say in the case of Gelpcke vs. The City of Dubuque only a few 

years ago, in which the supreme court of Iowa had decided unanimously I believe-at all eve11ts had decided, and that is sufficientMr. MORTON. Will my friend allow me right there Y 

Mr. THURMAN. Really this is too much! 

Mr. MORTON. I take it for granted my friend intends to be cor- rect. 

Mr. THURMAN. There is this objection: I have a mode of arguing a case right squarely to the point, and the Senator from Indiana 

has a way of diverting attention to matters that in my judgment 

have nothing to do with the case. . 1\Ir. MORTON. That assumption is unfounded; but I want to mn,ke 

this statement. I ask the Senator how the Supreme Court of the 

United States can get jurisdiction of any case from. a State unless it 

involves some question arising under the Constitution and laws of 

the United States f 

Mr. THURMAN. Now the Senator is ahowinO' that he is more ignorant than I supposed he wa,s. [Laughter.] If the Senator from 

Indiana sees fit to bring a suit n.gainst me in the circuit court of 

the United States in the State of Ohio on a prolnissory note he can do 

it, and that case can come to the Supreme Court of the United States, 

and there is no question about the Constitution, laws, or treaties of 

the United Stat.es in it. 

No, Mr. President, this will not do. The Senator cited the case of 

Luther vs. Borden, which is a case directly against him, for what 

said the court in Luther vs. Borden f 

Indeed, we do not see how the question could be tried and judicially decided in a State conrt. 

That is what the court sn.id there, and it goes on to say: 

Judicial power presupposes a.n established government capable of enacting laws 

and enforcing their execution and of appointing judges to expound and administer them. "The acceptance of the judicial office is a recognition of the authority of the government from which it is derived. And if the authority of that govern- ment is annulled and overthrown, the power of its courts and other officers is an- nulled with it. And if a Stato court should enter upon the inquiry proposed in this case, and should come to the conclusion that the government under which it acted ba~ beel} put aside and displaced by an opposin~ ~overnment, it woulcl ceru~e to be a court, and be incapable of pronouncing a judimal decision upon the question it 

undertook to try. If it decides at all as a court, it neccs arily affirms the exist. ence and authority of the government under which it is exercising juilicial power. 

(7 Howard, 40.) 

Now apply that to tbe decision of this judge, Hawkins. He was on that Lynch board. The so-called Pinchback legislature, which re- warded every single man on the Lynch board with a lucrative office, 

abolished a C(mrt and created another with the sole jurisdiction to try 

contested-election ca-ses, and put this very man Hawkins, one of the 

infamous Lynch board, on the be.p.ch of that court, deriving his au- thority from a so-called law passed by that so-called Legislature, and a commission of thn.t so-called governor, William Pitt Kellogg. If 

he had decided that Kellogg was not the go\rernor, that that body 

of men was not the Legislature, that very decision would decide thn.t 

he was no judge. It is the very caHe put by Chief Justice Taney 

in the case of Luther vs. Borden, and to cite such a decision as that, 

to cite the decisions of a State co:urt under such circumstances and 

say they are binding upon the Senate of the United States in the 

exercise of its sole jurisdiction to decide this question, is really tr~g 

with reason and ignoring law. 

Mr. BAYARD. Will my friend call attention to what Mr. Trumbull said about this judge, Hawkins 'I · 

:Mr. THURMAN. I will thank my friend to read what was said by 

Mr. Trumbull on this same subject. • Mr. BAYARD. It is as follows, from Mr. Trumbull's report: 

In view of the facts as shown to exist in Louisiana, the decisions of its courts in 

favor of the validity of the Piuchba<:k legislature are entitled to no respect what. ever. As has been already shown, that Legislature was not elected nor brought into bein11: by the people of the State, but owes its existence to the void proceP.dings of the United State court supported by military force. It was the creature of force 

and fraud. Its first act was to impeach and suspend the governor (Warmoth) and 

install Pinch back in his place. It then abolished one court and set up another in 

its place, and Pinch back appointed Ilawkins, one of the Lynch returning board, 

judge of the newly-established court. To give any consideration to the decisions 

of a court thus set up would be to aid the usurpation. Hawki.ns counts in spurious members of the Leg1slature; that Legislature makes a governor, who makes Hawkins judge; and Hawkins then decides the Legislature to be legal. 

Mr. THURMAN. I had marked that place to be read. I will ask 

the Clerk to rea-d the whole paragraph of what Judge Trumbull said 

on this subject. I send it to the Chair. Before the Clerk reads it, I 

wish t.o say one word more.in regard to Luther vs. Borden. 

Mr. MORTON. Has the Senator the seventh volume of Howard's 

Reports at his desk t 

Mr. THURMAN.. I have not. 

Mr. MORTO:.N. It is not in the library. 

Mr. THURlllAN. I do not know who has it. I read not from 7 

Howard but from an extract from the decision given in the speech 

of Mr. Carpenter, where the same passage referred to in the report 

is quoted. The question what is the government of a State is a political question, a.nd the Supreme Court has held that it cannot 

decide a political question but must follow the political department 

of the Government. Consequent.ly it follows that, being a political 

question, it is not settled by judicial decision. I have a1ready read 

what Chief Justice Taney said in respect to the decisions of the St.ate 

courts. I ren.d now what he further said on the subject of its being a political question: 

But the courts uniformly held that the inquiry proposed to be made belonged to the political power, anu not to t-he judicial ; that It rested within the po1iticaJ. 

power to decide whether the charter ~overnment had been displaced or not; and 

when that decision was made, the judicial deparbnent would be bound to take no- tice of it as the paramount law of the State, without the aid of oral evidence or the exarrunation of wimesse ; that, according to the laws and institutions of 

Rhode Island, no change had been reco~ed by the political power; and that the 

charter government was the lawful ana. established government of the State during the period in contest, and that those who were in arms against it were insttr- gents and liable to punishment. This doctrine is clearly and forcibly stated in the 

opinion of the supreme court of the State in the trial of Thomas W. Dorr, who was the governor elected under the opposing constitution, and he..1.ded the armed 

force which endea>ored to maintain its authority. Indeed, we do not see how the question could be tried aud jucticially decided in a State court. (7 Howard, 39.) . 

That is what Chief Justice Taney said; delivering the opinion of 

the court in the case of Luther 'VB. Borden, that the political power 

of the State of Rhode Island had recognized that government to be 

the true and valid government which prosecuted Dorr, and that Dorr's . government was not the true government of that State. It was that 

decision of the political power of the State of Rhode Island which 

the Supreme Court said was conclusive so far as that State wa-s con- cerned, and the recognition by the political power of the United 

States was conclusive so far as the United States were concerned. 

Now I ask the Clerk to .reacl the opinion of Judge Trumbull on tllis 

question from his report made in 1873. 

The Chief Clerk read a,s follows: 

The history of the world does not furnish a more palpable instance of usurpa. 

tion than that by which Pinch back was made governor and tho persons returned 

by the Lynch board the Legislature of Louisiana; nor can a parallel be found for 

tho unfeeling and despotic answers sent by order of the President to tho respect. ful appeals of the people of Louisiana. This pretended Legislature installed in 

power by the aid of the Uuited States Army, in pursuance of a void oruer of a United States district judge, proceeded to elect John Ray to r epresent t.be State of 

Louisiana in the Senate of the United States; and it is said the Senate must receive him because tho supreme court of Louisiana has decided the Pinch back legislatun~ 

to be the rightful Legislature of the State, and that the Senate is bound to follow 

the decision of the State court as to what constitut-es its Legislature. 

It is true, as a rule, that the Federal courts follow the decisions of the Stat& courts in regard to the construction of their own constitution and laws; but it is not true that the legislative department of the Government follows the decisions 

of the courts upon political questions. The inquiry what is t.be established gov- ernment in a State belongs to the political ·and not the judicial power. The Sell· 

ate, by the Constitution, is made the sole and only jud~e of the election of its 

members, who can only be chosen by the Legislatures of the respective States. 

Ordinarily the body recognized in a State as its Legislature would be held by the 

Senate to be the body authorized to elect a Senator; but when, as is the case in 

Louisiana, there are two bodies in a State, each claiming to be its Legislature, and 

each of which ha-s chosen a person to r epresent the State in the Senate, in ilecid· 

ing between the claimants the Senate must necessarily determine which body was the rightful Legislature and hall authority to make the election. 

In view of the facts as shown to exist in Louisiana, the decisions of its courts in 

favor of the validity of the Pinchbaek le~sla.ture are entitled to no respect what- ever. As has been already shown, that Legislature was not elected nor brought. into being by the people of the State, but owes its existence to the void proceed- ings of tho United States court supported by military force. It was the creature- of force and fraud. Its first act was to impeach and suspend the governor (Warmoth) and install Pinch back in his place. It then abolished ono court and set upanother iu its plac~ and Pinch back appointed Hawkins, one of the Lynch return- ing boarll, judge of the newly-established court. To give any consiileration to the· decisions of a court thus set up would be to aid the usurpation. Hawkins counts in spurious members of the Legislature; that Legislature makes a governor, who· makes Hawkins judge; and Hawkins then decides the Legislature to be legal. 

Mr. THURMAN. Now, Mr. President, to show how complete--

:Mr. MORTON. Will the Senator allow me in view of the statement 

he ha-a just made--

Mr. THURMAN. I wish the Senator would not interrupt me now. Mr. MORTON. I wish the Senator would just allow me-- 1\Ir. THURMAN. I a,sked the Senator when he was speaking the 

other day to allow me to say a word about what he quoted from w bat 

I had said myself, and he declined. 

Mr. MORTON. If I had charged the Senator with misrepresenta. 

tion, I would have allowed him to correct it . Mr. THURMAN. The Senator has the whole session to correct it. 

I do not wish to be interrupted now. Mr. MORTON. I ask to read just where the Senator left off in the 

decision in Luther vs. Borden. 

Mr. THURMAN. How much does the Senator want to read f 

:Mr. MORTON. Not much. 

Mr. THURMAN. If the Senator wants to read for the purpose of 

enlightening hi.rnself, it will take more time than I can spare. [Laughter.] 

Mr. MORTON. I want to read enough to send back the charge of 

ignorance where it belongs. 

Mr. THURMAN. Go ahead. 

Mr. MORTON. I will do that. In the case of L~tber -vs. Borden, 

• 
46 CONGRESSIONAL RECORD. MARCH 13, 

speaking about the authoritative decision of the supreme court of 

Rhode Island, the Supreme Court said: 

It is worthy of remark, h_owever, when we are referring to the authority of_State 

c1 edsious, that -the trial of Thomas \V. Dorr took place after the const1tutwn of 1843 weut into operation. The judge who decided that case held their authority 

under that constitution· and it i a1lmitted on all hands that it was adopteU by the 

people of the St.'tt•e, and is the lawful and e ta,blishcd government. It is the ae- oision therefore. of a State court, whosejuclicia,I authority to decide uppn the con- stitution and laws of Rhode Island is not queRtioned by either party to Ibis contro- versy, although: the government under which it actecl was framed and atiopted und r the sanction and laws of the charter government. The point, then, r:Used her·e has l>een already decided by t.he courts of Rhode 

Island. The question relates altogether to the constit.ution and laws of that State; 

and the well- ettlerl rnle in this court is, that the courts of the UnHed States adopt 

and follow the decisions of the State courts in questions which concern merely the con. titution and laws of the State. 

Upon what ground could the circuit court of the United States which tried this case have departed from this rule and disre~ardeu antl O"\'"erruted the decisions of the courts of Rhode Island 1 Undoubteillv tnQ courts of the Unitetl States have 

certain powers under the Constitution and laws of tho United States which do not belong to the tate courts. But tho power of determining that a State government 

has been lawfully established, which the comts of the State disown and repuui- ate is not one of them. Upon such a question the courts of the Uniteu St..'ttes are bot~d to follow tho decisions of the State tribunals, and mu t therefore regaru the 

charter government as the lawful and established government during the time of 

this contf:lst. 

I therefore send the charge of ignorance and misrepresentation 

home to roost where it belongs. 

Mr. THURMAN. If the Senator had not been answered about six 

times on this sn bject already--

Mr. l\10;RTON. Not once. Mr. THURMAN. He read the same thing and he was answered by 

the Senator from Wisconsin (Ur. Carpenter) during the last Congress. 

Mr. MORTON. This speaks for itself . .Mr. THURMAN. I know it speaks for itself, and I know very 

well how it is that a :person may pick out a single sentence or a single paragraph in a judicial opinion, wre tit from the context, and 

make it appear that it settles the whole case. The Senator was completely answered on that question by the -late Senator from \Vis- ~onsin, for the Senator has always relied upon that. 

Now I wish to put this question to the Senator and to the Senate : Cnn any decision of the Supreme Court even bind ns when we are a.djudicat1ng upon the rights of our own members to seats in this 

body Plainly not. Therefore, even i:f the decision of the Supreme 

Court were what the Senator says on this subject, it would not bind us. But what is it that the Senator has read now T In that elab- orate opinion the Chief Justice went on to show that the political 

power of Rhode Island had refnsecl to recognize tho Dorr government ancl had recognized the other government. He then went on to show that after a new con titution had been formed iu Rhode 

Island, which everybody admitted to be the true constitution, t.he 

supreme court created under that new constitution also recognized 

the old charter government as the true government. Undoubtedly 

those were roo t persuasive arguments why a Federal court should 

do the same; and then, in addition to that, was the recognition of 

the charter government by the Executive of the United States; and 

furthermore its recognition by both House of Congre s, for the Senators here sat under the old charter government, and the Representatives in the other House sat under that government too. 

But, sir, the matter is very easily disposed of as to this question of 

authority. Suppo e that a body of armed men should overthrow the 

government of any State in this Union-take any one- displace the 

executive, displace the Assembly, displace the judiciary, and set up a new executive, a new Assembly if it had any As embly at all, and a new judiciary, and by force ~et into power in that way; would the 

Senate feel bound by the dec1sions of that supreme court, the result 

<>f that usurpation 1' No one can pretend it; and yet it might be iu 

the de facto exercise of power in that State, not a de facto government as lawyers under tand a de facto government-one having color of 

title- but a government in point of fact exercising supreme authority <>ver that State. Would this Senate feel bound by the decisions of 

such a supreme court¥ J.funifestly not. In the exercise of its power, 

if the question aro e whether a Sen~tor from that State elected by 

that usurping Legi lature was the true Senator or not in this body, ma.nifestlyit would sa,y "we will not recognize this usurpation, which 

is directly in the teeth of the Constitution of the United States, which 

binds us to grummtee to every State a republican form of government." .A usurping form of government i not a republican form of 

government. If it is sheer usurpation, then the United States, so far 

from recognizing the usurpation, so far from seating Sen~tors elected 

by it in thiB Chamber, is bound to do directly the reverse and to 

guarantee to the people of that State a republican form of government . . 

I come now, :Ur. President, to the third proposition of the Senator 

from Indiana, and that is that the Senate is bound by the recognition of the President of the United States until Congress shall reverse that recognition. The Senator lays great stress on this proposition. He insists upon it that we are bound by that recognition until Congre. s reverses it. He says that the Senate has no rio·ht to disregard 

it. Well, sir, if that i~ the case, then I have to say that his proposi- tion expunges from the Constitution that provision which makes us the sole judge of the election, qualification, aud return of our members; and I put it to him how is it that Congress is to reverse that decision¥ When we speak of Congre. s in a-constitutional point 

of view a-s the law-making power we include the Pre ident of the 

United States, because his approval is necessary to make any bill 

that we may pass a law. If, therefore, Congres ·, acting in its legi - lative capacity, (for that is the proposition of the Senator,) can alone 

overturn the presidential recognition, then it must be by a bill or resolution that goes to the President for his approval, and which if 

he vetoe or refuses to sign fails to become a law. So then the prop- o ition of the Senator from Indiana puts it absolutely in the power 

of the President to decide who shall be mem her of the Senate of the 

United States or of the House of Representatives; that is, whomso- ever he recognizes, whatsoever body he recognizes, that body i the 

lawful government of the State, and by con equence ha the authority to appoint Senators aud under its laws Representatives are to 

be elected. It is a.n ab olute surrender of the power of the Senate 

and the po·wer of the Honse to determine the elections, qualifications, 

and returns of their own members. The Senator seems to have a vague idea that Congress may enact 

laws without the presidential approval, that Congre s may reverse the pre ident by a joint re olntion of the two Houses, a legislative 

resolution forsooth! How can it do any such thing a-s that f How can Congre&>- pa s any act of legislation that requires the concurrence of both Houses, unless it be the establishment of a joint rule for the 

conduct of the business of the two Houses, or the appointment of 

committees for the auditing of expenses, or those matters of the bu ·i- ness of Congress which we provide for by what are called concurrent 

resolutions- how can Congres make anything that has the force of 

law by joint resolution or bill without sending it to the Pl"e ident of 

the United States for his approval' 

I come back, then, to the position that the Senator's proposition 

gives the entire power to the President of the United State . It 

woul<irequire ns to pa s a bill and~ send it to him, which be may re- turn to ns with his veto or may refuse to sign; and then the pr idential recognition would remain. So that the position of the Senator from Indiana gives to the Pre ident of the United St.ates a power 

that no magistrate, no ~xecutive officer on the face of this globe, 

where there 1salegi lativeassembly, pos·e sesor everdidpo es. It 

is an absolute surrender of power to the President of the United 

States. Sir, that will not do at all. 

But the Senator, I think, undertook to read from J ... utber vs. Borden to sustain that proposition. The ca-se is directly against him. What did tho court say in that case: 

Under this article of the Constitution it rests with Congress to decide what gov- ernment i the established one in a. State. 

That is, the President may first decide th..'tt ; he is compelled to 

decide, Congress not being in se ion and the President being called 

upon under the act of 1795, but that is subject to the a<ltion of Congress. The court go on to say: 

Under this article of the Con titution it rests with Congress to decide what gov- ernment is the established one iu a State. For as the United States guarantee to each State a republican gove1nment, Congress must necessarily decide what ~ov· 

ernment is establi bed in the State before it can determine whether it is republican or not. 

Do the court stop there and say tba.t that must be done by a bill, 

that that must be done by a joint rc olution or the likef No, sir; 

but they point out what is this recognition that they speak of, for 

the court immediately go on to say: 

And when the Senators and Representatives of a State are oomittedinto the coun. ells of the Union, the authority of the government under which they are appointed, as well as its republican character, is recognized by the proper constitutional author- ity. 

Markit-

.And when the Senators and Representatives of a State are admitted into the coun- cils of the Union, the authority of the government under which they are appointed, as well as its republican character, is recognized by the proper constitutional authority. . 

· That is, we recognize it; the Senate by seating the Senators, the 

House of Representatives by seating the Representatives; not by bill, 

not by joint resolution, that is sent to the President for his approval or veto, bnt by our independent action in seating Senators and in 

seating Representatives, so that this very decision says we are to 

decide on this questio The House is to decide according to its judgment, and by the decisions that we make in that way the State gov- ernment is recognized by the proper constitutional authority. l!"'urtbermore the Chief Justice, speaking for the court, goes on to say : 

.And its decision is binding on every other department of the Government, an<l 

could not be questioned in a judicial tribunal. 

That is to say, if we determine who are the Senators and thereby 

recognize the government by which they are appointed, if the House 

of Representatives recognize the Representatives elected under the 

laws of the same government, that makes a recognition by both 

Houses; and that is binding upon every other department of the 

Government ; that is binding on the President ; that is binding on the 

courts. That is the mod~ by which the Pre ident's erroneous recog- nition is rever ed or his correct recognition is affirmed, if it be cor- rect. So far, then, from our having no authority to decide this ques- tion, so far from our being bound by the presidential recognition, it 

is our decision and the decision of the Hou e of Representatives 

which binds the President and not his recognition that binds us. The court go on to sayIt is true that the contest in this case did not last long enough to bring the mattei to this issue-
1875. CONGRESSIONAL RECORD. . 47 

That is, to a question in the Senate and in the House of Representatives who were Senators and who were Representatives-

:and a no Senators or Representatives were electe-l under the authority of U1e gov- ernment <lf which Mr. Dorr was the head, Congress was not called upon to decide 

the cont.rorersy. Yet the right to decide is placed there and not in tbe courts. 

The right to decide is placed in the Senate when it decides upon 

the right of a person claiming a seat here and in the House of Rep- resentatives wht•n it decides upon the right of a Representative -elected under the laws of the State, if that presents the question. There is where the right re t , say the court, and that is the manner in which it is to be d~cided by Congre s; not by biU, not by legisla,.. 

tion. I do not mean to say that it might not be decideu by legi lation ; I do not ay that if the President saw fit to approve such a bill as we might pass it would not be binding on all judicial tribunal ; 

but what I say is that we shall never, I tru t, surrender our jurisdiction to the Pre ident and put it in his power by interpo ing his veto -or withholding hi signature to a bill to determine who shall be Senators of the United States. No, sir, that will not do. This decision _goes expre sly on the ground that we decide for ourselves; for when 

it says that the question is to be decided by the eat.ing of Senators -or the eating of Representative , it must mean that t-he seating of ~en a tor is to be determined by the Senate and the seating of Representatives i to be determined by the Hou e of Repre cntatives, for the 

House has no power over us in the seating of Senators and we have no power over it in the seating of Representative . The whole thing, 

then, is in a nut hell; it comes back to the-fundamental principle 

-of legi lative in titntion ; at least it is fundamental in England anu fundamental here and in t!very State of this Union . It cost a long 

time to e tablish the pri,nciple in England. so far as the House of Com- mon was concerned. It was :t struggle of nea.rly two cen~uries be- fore the Hou e of Commons est-abli heu its right to be the sole judge 

-of the qualification , elections, and returns of its own member ; but 

it was firmly c ta.blisheu there before the American Revolution, and 

it baa been firmly est..'lblisheu in. the United States ever since a State 

-constitution was formed. It finds its place in every State con titu- t ion; it finds its place in the Con titution of the Uniteu States ; and 

if anythinu· can be calleu establisheu con titutioua.ll::tw in the United 

States of ~erica, it is that each bon e of a legislative assembly is 

t.he sole judge of the elections, qualifications, and returns of its own members. It has no master that can say authoritatively "Yon shall 

be bound by my opinion." It acts on its own high responsibilit,y 

under the obligation of its members, impo ed by their oath, their 

election, and their duty to support ancl maintain the Coustitution 

under which they act. It cannot be re trained; it cannot be over- thrown by any other department of the Government, by any other 

t,ribunal, be it executive, legislative, or judicial. 

Sir, I have spoken much longer than I expected, ami longer than I 

should have done if I had not been interrupted. I did not intend in 

fact to occupy any time of the Senate if others had been prepared to 

go on; a.ncl I now yield the floor. . .Mr. MORTON. I want to occupy the attention of theSenatefor a few 

minutes in reply to orne statements in regard to the law made by the 

Senator from Ohio. The Senator from Ohio has this morp.ing been 

guilty of a discourtesy which is rare to him, I am glad to say,amll think 

there must be some peculiarcircumstance toaccountforit. He charged me first with being rusty wit h rega.rd to the law, and secondly with 

being ignorant. In my State, if one lawyer sl;wuld make a charge of 

that kind agn,inst another, anu then tm·n out himself to be gro sly 

ignorant, he woulu·be uisbarred a a matter of course. I stated the propo ition that the Supreme Court of the United 

States and the other court.s of t he United States would follow the 

decisions of the highest court of a State upon all questions r egarding 

the constitution and laws of that State anu not iuvolving any ques- ti-on arising unuer tile Constitution and laws of tile United States, 

and that where the supreme court of a State had passed upon such a question its decision could not be reviewed by the Supreme Court of 

tlie United States. The Senator said that that was an evidence of 

ignorance, and he referred to theca e of a citizen of one State bringing a suit in tho courts of the United States against a. citizen of an- other State. Tltat is one of the ca es provided. for by the Constitu- tion of t,be United States expre sly. It ari es under that in trument, 

becau e the second :section of the third article provides that the 

courts of the United States shall have jurisdiction in suits" between a State and citizens of another State; between citizens of different 

State ; between citizens of the same State claiming lands unfler 

grants of different States, anu between a State, or the citizens 

thereof, and foreign States, citizens, or subjects." 

The e cases are specially provided for, and the juri diction is accordingly granted; but so far as any question can arise upon a State law as to the legality of a returninrr board, or a to who was elected governor or a member of the Legislature, the decision of that case belongs solely to the courts of that State and cannot be reviewed 

by the courts of t he United States under any circumstances, and the 

decisions of such courts are binding upon the Senate of the United 

States or upon the Honse of Reprel:lentatives acting in their separate 

capacity, aucl their authority can only be overturued by the joint 

action of Cougre s uu(Wr that clause in regard to guaranteeing are- pnblican form of government. I r eferred to the case of Lut ller vs. Borllen, in which the court expressly say- and I want to call attention and quote the Sennt,or's language in regard to it-that upon 

questions of this kind they will follow the courts of the State : 

Upon _such a question the courts of the United State8 are boundNot, a mere matter of comity, but they are boundto follow the decisions of the State tribunals, and must therefore regard the 

charter government as the lawful and established government dnx·ing the time of 

this contest. 

That principle has been repeatedly recognized, anu since the Sena- tor made the ·e extraordinarv statements I have collected some other 

authorities, anu I might collect very m::my. In a very recent decision, a case decide1l in 1872, tho opinion delivered by Mr. Justice Strong, 

the Supreme Court of the Uniteu States use the following language : 

In view of this, we donotperc i~e that we have an:v authority to reviewthejud~­

ment of the State court. Plainl.v, if thero be :my Federal question in thl' case, itls 

beca.usc the plaintiff claimed some title, right, privilet:re, or· immunity under the act of Congress to which reference was made in his bill, and because the deci ion of 

the court was a~ainst the title, right, privilege, or immunity thus set up or claimed. Such a claim and such a decision must appear in the record. But we think this does not appear. It must be admitted that the question whether the sale of the laml war- rant by Holme to .A.dsit, if made before tho warrant is ned, as char!-!:ed in the biil., was not a nullity, may have been pre ented, but it (loesnot appeart.hatsucha que - tion was decidoo, much le s th..'tt it was decided adver. ely to the plaintiff in· error. Kothing is more certain than that to give this courtjuTisdiction to review thejnd"- mcnt of a Stat-e court the record must show either expressly or by necessary intcn:l- ment not only that a Federal question was raised, but that it was decided adversely to the party who has can cd the ca e to be rem voll here. 

The doctrine was plainly staterl in Crowellts. Randell, and it has been r epeated 

in numerous later decisions. Indeed, it is the express r equirement of the twentyfifth section of the judiciary act antl of the act of February 14, 1867. .Aml the 

rulings of this cotlrt ban'l gone further. In Parmelee t·s. Lawrence it was aiel it must appear that the question must have been nece arily inYolved in the decision, 

and that the taw court could not have giren a.jud:nncnt without decidinp: it. In Williams vs. Norris it was held not to be cnou$h that the con truction of an act of Con!!I'ess was drawn in question and that tne decision was a~ainst the title of 

the party, but that it must also appear that the title depended on that act. .A.ml in Rector vs. Ashley it was laid down that if the judgment of the State court can Le sustained on other grounds than tho e which are of Federal co!.!D.izance this court will not revise it, though a Federal question may al o bavo 'been deciut~d ther ein aml decided erroneously . These decisions go much further than is neces- sary to sustain our judgment now. 

I call attention to another part of this decision: 

.As we have seen, tho bill was <lismisser.lfor want of juri!'ldiction. The judgment of the court respecting the extent of its equitable jurisdiction i , of course, notre- newable here. The r ecord does not inform_us what other que tions, if any, were decicled . It now hero appeat·s that the sale from Holmes to .Adsit was rulccl to be 

valid, notwithstanding tho act of Congre s which declared that sales of bounty 

1·ights, made or executed prior to the issue of land warrants therefor, f?hall be null 

::tnd void. .Nor was it necessary to the decree that was entered that such a decision 

should have been made. 

But whatever may have been the r easons for the decision, whether the court had 

.,iuri diction of the case or not, is a. question exclusively for the judgment of the State court. (Smith 1'8 • .Adsit, 16 Wallace, JHS-190.) 

Now I apply that directly here. The Senator argued, as did :Mr. 

Carpenter on a former occasion, that t.he supreme court of Louisiana 

had not j urisiliction of theca e it decided. The argument was <tbsmd 

in the beginning; the reasoning of Mr. Carpenter and of !\Ir. Trumbull was without force. · My position then was that the supreme court of 

that State was to be the judge of its own jurisdiction under a statute 

of the State not involving any Federal question; and here I find that 

doctrine direct.ly referred to, for the court say whatever may have 

been the reasons of the State court for holding that it had jurisdic- tion, whether those reasons weregoouor bad, that court was the final 

u.rbiter of the question as to its own jurisdiction under the State law. So I say, whet her the snpreme court of Louisiana haujurisdiction to uecide all questions arising upon the act creating the returning b~ard 

of that State, it was a State statute, and its juugment in every respect was :final anu conclusiYe, and to adopt any ot her rule would be to 

overtmn the very foundations of the State judiciary. In a case in 15 Wallace the same doctrine is adverted to very 

briefly, it being so well settled that t.he court does not reason it out: 

When a decision holding a contract void is made by the highest court of a State upon tho general principles by which courts determine that a transaction is good or bad on principles of public polic.y, tht} decision is one which this court is not authorized to review. (Tarver vs. Keach, 15 Wallace, 67.) 

As a matter of course there may be certain questions going before 

the Supreme Court of the United States involving general principles 

of law that are common alike to all the comts of the Union anu to the 

courts of every State which they ma.y have a right to review; but aU 

the questions arising under State statutes and State laws are to be 

finally decided anu determined by the courts of the State it elf. I have said enough, I think, to vindicate myself from the a ault 

made by the Senator from Ohio. Now one thing further. 'l'he SeH- ator, in the conclusion of his argument, said that it was the province 

of every State Legislature to determine for itself the qualification and 

election of its own members. So sav I. That was what the enator held in tho Goldthwaite ca e. That'iswhat I held in the Goldthwaite case also, that if there were members in tho Alab:una Legislature who were not elected or who hau procru·ed their seats by fraud, that 

question was to be determined by the house it elf; and that is the 

doctrine I apply to the Louisiana Legislature. If there were persons 

in that body who were not elected but who obtained their seats by 

frau«l each bouse -was to judge aml determine for itself; and wllen 

the Senator made that remark he a<lmitteu away the whole case ; 

there was nothing left. 
48 CONGRESSIONAL RECORD. MARCH 13, 

Mr. President, I did not intend to make an argument to-day. I 

shall desire in conclusion to reply somewhat to the argument of the 

Senator from Michigan [Mr. CHRI TIANCY] and perhaps other points 

that may have been raised. I have been drawn into this by the re- marks of the Senator from Ohio. .M1·. THURMAN. Mr. President, I am very sorry that the Senator · frorriindianathinksthat !treated. him with any discourtesy; there was nothing· further f1·om my intention. If I said he had become rusty 

in the law, it was not a very remarkable assertion nor one that was at all discourteous. It would be very extraordinary if he had not 

become rusty in the law after so long au absence from the courts; 

and I think that if I had been out of them as long as he has been I 

should not cons\d.er myself treated wit h-discourtesy if any one were to say that I had become rusty in the law. . The Senator reads from a decision of the Supreme Court of the 

United States showing that the Supreme Court of the nited States 

considers itself bound on questions that are in no wise Federal by the 

decision of the highest court of the State upon the direct question. 

I cited him to au e tablished exception to that rule; and that is, 

that where there had been contradictory decisions, as in the Bank cases ·from Ohio and as in the ca"8e from Iowa, there the Supreme 

Com·t of the United States did not feel itself bonnd to follow the 

last decision but followed that decision which in its own judgment was correct. I ought also to have said in that connecti(ln that in 

respect to this very question now before us, or in respect to the principles that settlo this question if it could be settled by judicial de- · cision, this very report of our Committee on Privileges and Elections 

shows that the decisions of the supreme court of Louisiana are directly opposed to each other, so that the ca e comes precisely 

within that category of cases in which the Supreme Court of the 

United States itself, if it could have jurisdiction to decide upon the 

matter, would not feel itself bound by the last decision of the ~:~upreme court of Louisiana. The decisions of the supreme court of ·that State upon the principle which lie at the bottom of this whole 

controversy are directly in conflict. When there was a court there 

too pure to be suspected, when there was a coqrt there in times of 

peace when law a,nd the const itution prevailed; then the decisions 

()f that court established principles upon which I might safely rely 

for the opposition I make to the seating of Pinchba-ck. 

But, Mr. President, the Senator says (and it is a specimen of his 

reasoning) that I yield the whole case when I say that each house of an assembly is to be the judge of the elections,. qrtalifications, and 

returns of its own members; and be says that this Louisiana house 

that elected Pinchback did de·cide and that settles the whole case. That is another specimen of begging the question. The question is, was that a house ¥ In Goldthwaite's case there was no such question. Nobody denied that the body which elected Goldthwaite was the Legislature of Alabama,; but it was said that there were three or four or half a dozen members in the body who were not legally an t.itled to sit there. If they bad been turned out, the remainde1· 

would have been the Legislature. There was a quorum without .them of members undoubtetlly elected whose seats were in no wise 

questioned. So there was no question there but that the body that 

decided the question was the legal Legislature of the State of Alabama. But that is not the case here at all. This body of men who as embled there smTonnded by the bayonets of the Army, placed 

there by Durell, never were a Legislature at all, never were author- ized to decide anything. It was a sheer, flagrant usurpation, as your 

committee has found and found upon evidence t hat cannot be gain- said. So that the Senator is simply furnishing us wit h another 

illustration of how he begs the que·stion and then reasons from the 

premises that are thus assumed. The Senator reads judicial authority in respect to the Supreme 

Court of the United States following State decisions. Has be shown 

authority that the Supreme Court of the United States follows the 

decision of the State courts on political questionst No, sir; but Luther vs. Borden decides directly the reverse, that political questions are not judicial questions, and that the judicial depaTtment follows the 

political department and not the political department the judicial 

department; and that same case decides that what is the established 

government in a State is a political question. I have already read 

from that decision, but I beg to refer to it again q,nd to read another 

passage from it : 

When the decisjon of this court rojgbt lead to such results, it becomes its duty to examine very carefully its own powers before it undertakes to exercise j urisdictwn. Certainly the question which the pl:J.int1ff proposed t.o raise by the testimony he 

offered has not heretofore been recognized as a judicial one in any of the State courts. 

The qu~stion what is the established government the court sayhas not heretofore been recognized as a judicial one in any of the State courts. In forming the constitutions of the different States, after the declAration of inde- • p endence, and in t he various changes and alterations which have since been made, 

the political department has always determined whether the proposed constitution or amendment was ratified or not by the people of the Srote, and the judicial power had fCillowed its decision. In Rhode Island the question has been directly decided. 

Prosecutions were there institutedagainst some of the persons who had been active 

in the forcible opposition- t.o the old government. And in more than one of the cases evidence was offered on the part of the defense similar to the testimony offered 

in the circuit court, and for the same purpose; that is, for thu purpose of showincr 

tha.t the prop~sed constitution hall been adoptell by the people of Rhode Island, 

and h::ul., thm-eforc, become the est.abli hed government, and consequently that the pa.rti~s accused were domg nothing more tha.n their duty in endeavoring to sup- -uort 1t. 

But the courts uniformly held that the inquiry proposed to be made belonged to the poliucal power and not to thejudimaL 

Why, sir, the decision is a complete decision that even the Legislature of Louisiana would not be bound by t.he decision of its courts; nor would it be. Upon this question as to what is the established 

government the Legislature of Louisiana itself would not be bound 

by that; on the contTary, the conri!s of Louisiana would be bound to 

follow the decision of the political power in that State on the question what is the established government in the State. And now the 

Senator gravely argt.:es that a decision which the Legislature of 

Louisiana itself is not bound to respect, which in no sense controls 

the Legislature of Louisiana, binds the Senate of the United States! 

Mr. MORTON. Mr. President, I thank the Senator for his last 

statement. He falls back, after I think being successfully driven 

from every other position, upon what the Supreme Court of the 

United States has said in regard to the politica,l power of Congress. 

Now I gravely submit to the Senate of the United Stat.es whether the 

question as to who constitute t he members of a returning board cre- ated by the laws of Louisiana or who is elected governor of the Sta,te or members of the Legislature is a political question primarily de- volvin~ upon Congress for its decision. If that is what is meant by a political question, then the question of electing every constable s~eriff, ~ember of the L-:gislature, or State officer, is a politicalques: 

twn, wh1ch can be canvassed, contested, and det.ermined by the Congress of the United States-- an absurdity so palpable that it only 

require. to be stated to be understootl by everybody. No, sir, that is not what is meltllt by political questions, as referred 

to in Luther vs. Borden. What wa,s the ca.re there T There was a su- preme court in Rhode Island that was not in qispute at all. Nobody 

tlenied that the supreme court which had decided the question was t he supreme court of the State. The controversy did not involve the · court. So in Louisiana the controversy does not involve the com·t. 

The court was elected in 186 , the members holding their seats for 

eight years. Their title~~ not. involved in the controversy at all. 

The supreme court of Lomsmna, like that of Rhode Island, was undis- . puted. 

The supreme court of Rhode Island, undisputed, went forward and 

decided that the charter government of Rhode Island was the lawfnl 

government of that State, and the Supreme Court of the United States 

in the case of Luther 1'8. Borden sa.id that as the supreme court of the 

State of Rhode Island was not in dispute they were bonnd to follow 

its decisions. It was not a question · of comity; it was a question of 

absolute obligation; they were bound to follow its decisions, even upon a high question of that kind. Now the question here does not approach in dignity to that at all · but in this case the supreme court of Louisiana have decided wh~ was elected, a question arising exclusively nuder a State law and in 

regard to which we have no right to intervene unless the State gov- ernments in every respect are at our mercy. The Senator said there had been confiictin,. decisions of the su- preme court of Louisiana. I have heard that to-day for the first 

time. There is in that ·State, commencing in. February, 1873, an nn- ~roken cur!ent of. decisions to the effect that the Kellogg legislature 

1s the lawful Legtslature of the State, that Kellogg is the governor 

of the State, and that what was known as the Kellogg government 

is the lawful government of the State of Louisiana-an unbroken 

current of decisions arisj.ng under the constitution p.; ... d laws of the 

State of Louisiana. The case that he refers to <;OVeTs this like a. mantle. · 

And when he talks about "the political department of the Govern- ment," what doe he mean by it f Does he mean the Senate of the United States Y Does he mean the House of Representatives f Does he mean the President alone f No, sir; it is "the United States" 

that is to pass upon the political government of a State, and that means the action of both Houses of Congress coming to the sa,me 

conclusion in the form of an enactment. It does not mean t.he Senate; it does not mean the House. That brings me back to the prop-

?sit.ion I enunciated th.e other day, and one that is impregnable and 

mdispensable to the enstence of State government; and that is that 

the actual government in a State, there received, there administered 

by the cotrrts, there in existence, there acknowledged and declared 

by every State tribunal; that that government must be received by 

the President acting by himself, by each House acting for itself, nntil 

the Congress of the United States, as "the United States" in the 

fourth a,rticle of the Constitution !:!pecified, shall overturn it; anything else is anarchy; and that is this case. Mr. THURl\1AN. If the Senator from Indiana were the juclcre of 

whether he had llemolished an adversary in argument he never ~ould 

f:.Lil to give jullgment in favor of himself, and thereby would illustJ.·ate the wisdom of that old maxim that no man ought to be' a jud,.e 

in his own case. I do not remember an occasion in which the Senat~r 

has enga~ecl in discussion with a brother Senator that be did not 

completely demolish his adversary, in his own opinion. He bas told us again and again in this discussion that he had advanced his positions before on this subject and had never been answered ; he has 

told us that they are impregnable and that the opposite opinions are absurd; and if strength of language an strength of utterance 

and vehemence of gesticulation could settle the question, there· would be no use whatsoever in arguing with the Sen.:t.tor from 

Indiana. There were some good lawyers on this floor who thought 
. -

1875. CONGRESSIONAL RECORD . 49 

at the last session, when the Senator made substantially the same 

speech he has made at this, that he was answered hy the Senator 

from Wisconsin, (Mr. Carpenter;) there were some of us who thought so ; but the Senator from Indiana never thought SC\; it never entered 

into his imagination that the Senator from Wisconsin had answered 

him. It was of no use in his mind that Senator after Senator coincided in opinion with the Senator from Wisconsin; it was of no use in ettling his judgment that even a majority of the Senate might be 

of that same opinion; he did not think he was answered; he does 

not think so to-day; he never will think so as long as he lives. That 

i his own idiosyncrasy; he cannot help it, and I will not complain of 

it. There is nothing better perhaps than for a gentleman to live on .good terms with himself; and if my friend from Indiana has that 

extreme good fortune of being always on good terms with himself, I 

congratulate him on the possession of a characteristic which will 

coutrilmte more to his happiness than all the other grand and amiable 

characteristics that he posse ses. Now, Mr. President, one word more. The Senator says that the 

theory .that this is a political question, if I understand him, would 

authorize Congress to decide who is a constable in a State. Is that an argument worthy of the acknowledged ability of the Senator from 

Indiana Y I think on reflection that it is not. I think on reflection 

he will admit that the Senate of the United States has nothing to do 

with deciding who is a constable in the State of Louisiana or .Alabama or Ohio; but I think he must admit that the Senate of the United 

States has something to do with determining who has a right to a seat on this :tloor. 

Again, sir, he says that would authorize us to go into a determination of the right of each claimant to a seat in a State Legislature. 

It does no such ' thing. The Senator from Indiana in the Goldthwaite case did express his opinion that if the objection to a mem- beiJs holding a seat in a State Legislature was that he was disqualified 

under the fourteenth amendment, Congress might look into that 

question. He made that an exception. He is the only man I know 

of who does make that exception. I agree with him-and nobody ever entertained a different opinion-that the question as to the qualification of members of a St.ate Legislature is a question to be decided 

by the house of the Legislature in which the claimant asks for a seat. 

No one disputes that; but there must first be a house ; there must 

first be a body competent to decide. If the body that undertakes to 

decide is no house at all, if it is a mere body of usurpers, if it is a mere mob, you have to beg the question and say it is a house before you can give any effect to its decision. That is precisely the case here. 

This body of men were not the house. The whole of the Senator's 

argument is based 9n a be~ging of the question and saying they were. Mr. WHYTE Mr. PreSldent, it is with unaffected diffidence t·hat I 

ris to acldre s the Senate on Louisiana affairs, and I am the more em- barrassed in following immediately after two such distinguished Senator and after the able and logical arguments which they have delivered on this floor yesterday and to-day, the Senator from Michigan [:Mr. CHRIST~CY] and the Senatm from Ohio, [Mr. THURMAN,] and es- pecially following the bandying of excited words which has taken 

place between our friends so recently before us. I am the more em- barras eel, knowing my own inability to add any freshness to this 

" thrice-told tale," or to add new interest to anything that may be 

said in its discussion. But, sir, the question immediately in hand is as to the composition of this body; a body which has in time past 

and I trust may continue in the long future to be one of the most 

honorable and honored parliamentary bodies in the world. The 

question comes before us in the 'tormof a resolution presented by the 

Senator from Indiana, [:1\Ir. MORTON,] which resolution provides 

that P. B.S. Pinchback should be admitted as a Senator from the 

State of Louisiana for the term of six years beginning on the 4th day 

of March, 1873. The Senator from Vermont [1\fr. EDMUNDS] has 

offered an amendment to insert before the word " admitted" the 

word" not," and I am happy to say that I shall range myself in that 

army of which the Sena~or from Vermont shall carry the banner. I 

shall vote for the amendment of the Senator from Vermont, and I 

de ire to give some of the reasons which have actuated me in coming 

to that conclusion. 

The argument of the Senator from Indiana, the only advocate apparently for the proposition whom we have yet heard on this floor, is 

that the credentials of Mr. Pinchback being in due form, under the 

signature of a person signinO' himself as governor of Louisiana, and 

attested by the seal of that State, entitles him to admission to a seat as a Senator, and that whatever objections m~ exist, if any, as to 

the manner of his election or as to the legal character of the body 

by which he was elected should be inquired into afterward; or, in o hor words, that the filing of his credentials present a prima facie case for seating him in this bo y pending· inquiry as to his election. 

I won.ld not take the time of the Senate in adverting to this subject, in mY. view of the case a it stands to-day, but it is well for 

t.ho ·e of us who have recently become members of this body to appreciate and to follow good and substantial precedents. I admit 

that in the absence of objection, where a gentleman pre ents himself 

at the bar of the Senate with a certificate of election and offers himelf ready to take the oath provided in such cas , he i admitted, anu ought to be· admitted, and he becomes, for the time being, a member 

of the Senate. The signature of the gov.ernor, the proper attestation 

of the other officers of the State, the affixing of thf\ g1·eat s~al of the 

IV-4 

State to the certificate, and if it complies with the terms of the act 

of Congress of 1866,· I admit, ought to be his guarantee to be admitted, at once, to a seat on this floor. This rule ha,a been established 

by a long line of precedents, commencing in the earlier days of the 

Senate, before party warfare had become as violent and party rancor a,a bitter as in these latter days have manifested themselve . This 

rule, as a State-rights man, I advocate and approve. When a gt>ontleman comes td this body apparently chosen by the Legisla.ture of a sovereign State and presents himself as its representative, it is duE> 

to the honor and the integrity of the State that he should be received 

into our midst. But, Mr. President, rules of all kinds have thei.J.: just and proper ex- ceptions. This rule has had on more th:;m one occasion not onl5r n just and proper exception but in my judgment has been subjected to. most unjust and improper exceptions. I know of no gentleman who 

has within recent years occupied a seat in this body, I refer to the 

late Mr. Fessenden, of Maine, now having gone to his long account, 

I trust enjoying that peace which passes our understanding-! say 

I know of no gentleman better a.cquainted with parliamentary practice or upon whose opinion on that subject I would more firmly depend. 

I trust I am not infringing upon that rule of senatorial courtesy to 

which Mr. Carpenter jokingly referred in the be~inning, I think, of 

the last Congress, whev. he said that the CongresSlonal Globe is not a good book to refer to if it recites senatorial opinions more than two 

years old, for this is a case in which I hardly believe I should be violating that rule, when I refer to the views of Mr. Fessenden in the case of Governor Thomas of my own State who had beeu elected by 

the lawful Legislature, and who appeared here with no one from his 

State disputing the right to his seat on this floor. Mr. Thomas came here with his proper credentials from the State of Maryland 

and offered himself ready to take the oath. Objection was made. 

My friend the Senator from Ohio [Mr. THuRMAN] will pardon me for saying that the objection as stated by him was not the real objection that was made on .the floor of ~he Senate when he offered 

himself ready to be sworn m. Mr. Fessenden there stated the rule, 

and I refer to it, but will not occupy the time of the Senate by reading it unless asked or unless it is disputed. Mr. Fessenden laid down 

the rule, that by a long line of cases every Senator, who presented 

himself with proper credentials and without serious objection was entitled, aud had been admitted to his seat, until the war broke 

out, and then he himself had objected to the formal admission of 

Mr. Stark from the State of Oregon; somebody else had objected to 

the admission of Judge Patterson from .the State of Tennessee, and 

then came the case of Governor Thomas. Mr. SHERMAN, of 9hio, 

also gave his view of the case, which I will ask the permission of the 

Senate to read : 

There is no question of constitutional law raised in this matter, &c. The right of the Senate to pass upon the elections, qualifications, and returns of its members 

is given by the Constitution. Ordinarily, when a paper is presented in due form, showing the election of any citizen of the United States with the requisite qualifi- cations, by any State, be is admitted to his seat. We have the right, however, to pa-ss upon the election, returns, and qualifications of the member. Whether we do 

it before be is sworn into office or afterward is simply a matter of di cretion in the 

body. Our right as judges, given to us by the Constitution, would undoubtedly authorize us to pass upon his qualifications before administering the oath of office. 

Even, as it will be seen, on his qualifications, without waiting to 

obtain jurisdiction of his person before by having him sworn in. 

There can be no doubt about that. It is therefore simply a question of the order 

in which the business of admitting the new member shall be transacted- In ordinary cases the oath is administered, because it is presumed no objection will. be 

made, or if objection be made afterward1 that objection is inquired into and the 

a.ction of the Senate can then be recons1dered.-Oongressional Globe, first session 

Fortieth Congress, 1867, page 175. 

. But in the case of Mr. Thomas objection was made on account of 

words spokeu by him when he received the nomination bytheLegisla, 

ture of the State, I think at a champagne supper. They were words, if 

true, highly defamatory of the character of the Senate of the United 

States; but he denied the truth of the assertion that he had ever uttered such language. These were the words. H~ spoke of Senators 

here being traitors to the Union, and thatHe would go there to fa-ce these men, who are now :md always were traitors to the Union. 

The late Mr. Sumner seemed to have been particularly distressed at 

the words" always were," and inquired whether he said tha:.t, seeming 

to think that charge too heavy to bear; but if such words had refer- ence to their actions since the war, probably it would not have been so serious an accusation. Said Mr. MORTO:N, of Indiana : 

If Mr. Thomas made that speech it is enough to ·put this Senate upon inquiry. 'k * * * * * "* 

I will remark further that, after bavin~ beard that speech read, I should like to know something about the history of this m.m during the war. 

Ancl he upported the reference of the credentials to the committee. I cite this merely to show that the Senator from Indiana himself 

has not only made objections to a claimant's admission upon his prima 

facie case upon general grounds, but merely for words which he had 

used iu t speech made in the State where he was elected. 

I say there are exceptions. That case was supposed to be an ex- ception, and it was sent to the Committee on the Judiciary. I believe 

at that time there was no committee in this body on privileges and 

elections. It was sent to the Committee on the Judiciary, and they 

reported not in regard to these words at all. They found no reason 
• 

50 . CONGRES.SIONAL RECORD. MARCH 13, 

why Governor Th9mas could not take his seat except in the fa-ct that 

his son had joined the confederat.e army and that he had given him some money before he went away. 

Mr. MORTON. I will state to the Senator another very important 

fact which he omits-the letter written by .l\Ir. Thomas while he was Secretary of the Treasury, I think in January or February, 1861, 

which very clearly showed-- ~ii-. WHYTE. I am talking about the report of the committee, 

and I state it a.ccurately. I know that there was in the testimony a great deal of evidence in regard to his course while he wa-s Secretary 

o.f the Treasury under the Buchanan administration, but I am stating 

what the Judiciary Committee reported which I have found in a document of that session. The Senator will find that they reported q~ the 18th of December, 18G7, that they saw no reason to debar Mr. 

Thomas from taking his seat unless it was found in the fact of his son entering into tho military service of the confedera-cy and in the 

circumstances connected with that fact, and they reported no expression of opinion whatever. I admit that the Senate afterward, upon 

discussion of Mr. Thomas's case, refused to allow him to take the 

seat to which they had never admitted him, and the Le~islature of 

Maryland howetl to your decision and sent General Vickers in his ~:~tead. I am not complaining of the action of the Senate; I am not 

complaining that the Senate, sitting as judges actin~ upon con- science, tm'ned Governor Thomas away from these doors. 

Mr. MORTON. Will the Senator allow me to interrupt him f 

Mr. WHYTE. Certaillly. 

Mr. MORTON. I call the attention of the Senator to the ground 

upon which the rejection of Mr. Thomas was placed, the ground upon 

which it was taken out from the operation of the general rule. 

Whether that ground was solid or not, I shall not speak; but I speak 

of the ground oron which it was taken from t~e operation of the 

general role that the certificate of the governor makes a prim,a facie 

case. At that time we had but one oath for admission into this body. 

That was what was called the iron-clad oath. There was no modified oath that co old be taken; and it was held by the majority of the 

Senate, upon what was regarded as public history as well as special 

evidence, that Mr. Thomas could not take the iron-clad oath without 

committing perjury. 

Mr. WHYTE. It was kind in our friends not to subject the gentleman to that ordeal! Did they ask him to take the oath t It is 

the first time that the consciences of democrats have been takeninto 

such carefol charge. But I am not objecting to it. I want my friend 

the Senator from Indiana to understand I do not object to his making the exception. I agree with him that there are exceptions to the 

general rule. He thinks Mr. Thomas's case was one, and now I am about to show that this case is another. If these cases of Stark and 

Judge Patterson-and I will not refer to the other ca-ses mentioned 

by other gentlemen who have discussed this subject-if these cases presented objections to the p1•i1nafacie title of the applicant, what 

must be thought of that objection made here, on all hands, coming 

up in this body, coming up in the other branch of the legislative department, coming up all over the land f Here is a man aBking to be 

admitted to your body who claims his title to a seat upon an election 

that was a mockery and a fraud. If these cases furnished objections, 

what must be thought of the case of a man who comes here from a Legislature that had no legal existence, no power to exercise the 

functions of a lawful Legislature, who comes here and asks us to 

receive him as our peer and equal on this floor f Such a suggestion 

is one of a high public character. It is highly privileged in its nature 

when made even upon the solemn a-sseveration of a Senator alone; 

but when now made under the more solemn assertion of a standing 

committee of this body, it demands a prompt examination before the 

applicant· should be permitted to participate in our.deliberations. · If, therefore, Mr. President, the case was now presented for the 

first time, and this was the beginning of the Forty-third Congress, 

when the term for which he claimed began, with these denunciations 

of his right to a seat, I care not whether he be of my own party or of 

the opposition, loving the institutions of my country, I woold vote to send his case to the Committee on Privileges and Elections. But I · am taking up the time of the Senate to no purpose. The period for 

the p1•ima facie case has long since passed. The argument which I 

have heard in the Senate Chamber from the Senator from Indiana 

might have been made at the commencement of the ~'orty-third Congress, but to-day it is as much out of place as the snow-heap of the 

lingering winter beside the blooming crocus which the fair-handed 

spring has just tm'own out under the very walls of the Capitol. 

P1·imta fa.cie case! It has gone. It is a mockery to talk to men of sense about a pl'inta facie case in regard to Pinchback to-day. The case itself has been in the hands of a committee. It has been ex- amined by the Committee on P1ivileges and Elections. On your 

table lie a majority and a minority report upon this very question. 

The case is ready before us for final adjudication. We have the 

majority report of the committee made at the last Congress by the 

Senator from Indiana. We have the minority report made by the 

Senator from Delaware [Mr. SAULSBURY] and the Senator who re- cently represented my own State here, [Mr. Hamilton.] Then what 

is the question T The question is a plain, simple one. It arises under 

that clause of the Constitution which declares thatEach House shall be the judge of the elections, returns, and qualifications of its own members. · 

What are" returns f" · The paper title; but the election is the substantial thing. Th~ ''election" is the title, the "return" tho paper 

evidence of it. Without the electipn, what is the use of the return ! 

If the return is in form, if the return is correct, and yet the election 

is a fraud, we go back to the foundation and start from the election 

itself, and do not commence at the return at all. Election first, cer- tificate next, and qualification last. The framers of the Constitution 

made the order, and by that order I propose to try the case. What is a p1'im.a facie ca-se 'f A case where the party presents himself without objection, with the paper title, with all the surroundingswhlchapparently give him a standing in this body. That case pre- sents a degree of probability which in the absence of evidence to the 

contrary would entitle him to reception. When you take your testimony, when you have the facts before you, it is idle to talk about a. prima facie case. Now, what facts have you obtained f You have the 

majority report on this very case; you have the minority report on this very case; and you have the report of the Committee on Privileges and Elections on the case which occurred in the Forty-third Congress. What was that case'f There maybe some Senators who have 

not had the time to look at it, and ·I do not want to cite as evidence 

that which in my judgment is not clearly evidence in this contest. 

That case grew out of an election made by the same Legislature, held 

upon the very same day as that of Pinchback, and it occurred in this 

wise: The same Legislature voted upon the same day for two Senators, one of whose cases has been decided by this body and occurring 

thus: Kellogg resigned his seat in the Senate of the United States and 

went to Louisiana to be governor. The term for which he was Senator expired on the 4th of March, 1873. His resignation was dated some time in November, 1872, and thus a vacancy existed in this body for 

the rest of his term. The certificate of Kellogg as governor was given as well for the vacancy as for the next term beginning March 4, 1873, 

certifying that Mr. Ray wa-s elected on the 15th of January, 1873, for 

the vacancy, and that on the same day P. B. S. Pinchba-ck was elected 

for the long term. Therefore it is the same question, the same Legislature, the same day of election, for the short term and the long term. 

The question is identically the s~me, whether t~e Legislature that 

elected Ray was a lawfol body and whether the Legislature that 

elected Pinchback wa-s a lawfol body. If it was unlawful when it 

elected Ray, it was unlawful when it elected Pinchback. The same rule applies to one as to the other. It is a great public question, and 

in the investigation as to the one case the testimony is binding as to 

the other. There is nothing of a personal character to be inquired 

into in either case. That committee reported what we have so often heard, that there was no lawfol State government in Louisiana and that the Legislature which professed to elect Ray wa-s no lawfol Legislature at all. 

Ray never was permitted to take a seat in this body. While we are acting here, not as legislators in determining this question, but as qua-si-judicial officers, nevertheless we ought not to be bound by any 

strict and iechnical roles of evidence, such as are daily enforced in 

the courts of common law. We are bound to take a broader and more comprehensive view. We must take judicial notice of many 

things not proved in a special contest. We are bound to know cer- tain historical facts. We are compelled to take cognizance of things 

of such public notoriety that, without the form of actual proof, we cannot fail to receive them as facts; for while it is undoubtedly true 

that sitting here in this investigation we are in a measure acting as a court of law and justice, yet we are also acting as a" com·t of discretion and of equity." Mr. Smith, of South Carolina, whose ability was well known and whose knowledge of the usages of parliamentary assemblages was admitted, as early as 1793, in a case of con- tested election, laid down this role, though he was at that time speaking of hearsay testimony : 

The House had been told that hearsay testimony was unworthy of attention; but 

he wished to remind them that they were not, like a court of law, restricted to pro- ceed upon regular proof and not to go beyond the letter of it ; they were entitled to hear and weigh everything advanced, and to form their opinion front the gen- eral wnviction arising upon the wlwle circumstances.-Oontested Elections, 1789-1834, 

page 80. 

That is the "role in contested elections or in questions of this character, laid down· by one of the ablest parliamentarians of this country. 

That role has been followed in both Houses over and over agaw. 

That role, I apprehend, will be followed in this body. The question 

here addresses itself to the conscience of every one of us; its decision 

will overtmn no government in Louisiana. No matter what we de- cide, no matter whet]Jer we refuse to admit Pinch back, we cannot by 

that overturn the present unlawful government in Louisiana; it will 

create no revolution; it will only assert either the dignity of t his 

body and its- determination to maintain the purity of elections, or it 

will repudiate the wise counsels and 'the solemn findings of some of 

the ablest men that have been members of this Senate. On thit> subject, I say, we are bound by no recognition. No specious argument can mislead me; no human eloquence, though the orator be silver- tongued, can teach me so far to forget my duty that I am to be bound 

by the recognition of a court or any other authority in a matter of 

which the Constitution has made me a member and a component part of a supreme judicial tribunal. 

I approach this question not as a partiSan; for though I may believe that John. McEnery was elected governor of Louisiana. that the Legislature on the same ticket with John McEnery was elected the law-
1875. CONG-RESSIONAL RECORD. 51 

ful Legislature of Louisiana, yet to-day I say it on my individual 

responsibilty only-for I have consulted with no one-1 would vote 

against McMillen, who presents credentials as elected by the McEnery . legi lature, because I am here to decide the question not according to 

my feelings, not according to my beliefs, not according to my hopes, 

IJut by the sworn testimony that I find upon the table and by the sol- emn findings, which I approve, of a standing committee of this body. 

Now, says the Senator from Indiana, "you are bound by the decision of the highest State tribunal in the State of Louisiana;" "I do not mean to say that you can ue compelled "-not using his language, 

because he used that which was more apt, probably, for the discussion-" I do not mean to say that I can take you like the borRe to tho 

spring and compel you to drink ; I do not mean to say that you can ue forced to do so;" but be addresses that which is the most persuasive argument to men of honor and of intelligence," It is your solemn 

duty before God and your country to reeoguize the decisions of the 

highest State tribunal of the State of Louisiana on this "question." 

He could use no language which would appeal to me with more force 

than that; and if I could be made to believe in such a doctrine as that 

I would vote for his resolution. But the doctrine is wrong; wr_ong 

in law, and has no foundation to sustain it whatever. We are bound 

by no recognition of a State court ; and his view of the law is wron~ in 

regard to the Supremo Court of the United States as to its undeviatmg 

adherence to decisions of State courts. As a general rule-for, again, 

when the distinguished t:;enator from Indiana gets upon geneml rules 

most of us can stand -his general rule is correct, that where the hig best 

State triuunal, the supreme court of appeal of a State, decides any 

question growing out of the constitution and the laws of that State, . the Supreme Courtofthe United St.sttes is bound by it and will follow 

it, because it has in numerous decisions said that it will be bound by 

that rule. It is accepted, therefore, to be true as a general rule ; 

but like that other general rule in regard to the admission of Senators in this body of which I have spoke, it has its exceptions also. 

When the Supreme Court of the United States sees fraud as· we see, 

that Kellogg's title to be governor is a fraud, that the Pinchback 

legislature is a fraud, that the returning board known as the Lynch 

board is a fraud-when we know and ascertain these things from the 

records and archives of the Senate, we not only are not bound to 

recognize a tribunal which does f.'ecognize such frauds, but our duty 

is to reject and to repudiate it with scorn and contempt; and so would 

lhe Supreme Court of the United States do. Speaking through Mr. 

Justice Swayne, of Ohio, it has refused to be bound by a decision in 

just such a ca e, and I refer to a decision in 1 Wallace, 206, which is 

directly in point: 

We are not unmindful of the imJortance of uniformity in the decisions of this 

~~~~a~~~!~ ofe Jf~~:;~:~~~c It ~llit;:• s~WJ ~r::'otr~o:~ !h:;tili'~~ to follow the clecisions of the State conrts. · 

There is the rule which my friend from Indiana lays down, and 

which he will find this to be an authority to support: 

But there have been heretofore, in the judicial history of this court, as doubtless 

there will be hereafter, many exceptional cases. 

Ah, Mr. President, let Senators read the decision of this tribunal 

made in 1863 : 

We Rhall never immolate truth, justice, and the law because a State tribunal has 

erected the altar and decreed the sacrifice. (Gel peke vs. C1ty of Dubuque, 1 Wallace, 

206.) 

And they reversed t.he decision of the State court in that case. Mr . .MORTON. Will the Senator state how the Supreme Court got 

jmisdiction of the ca.ae f What was the question f 

Mr. WHYTE. I gave my friend from Indiana a reference to the 

authority; and when he comes to it, if he can untie the knot I shall 

be very much pleased to hear him. 

Mr. MORTON. I ask the Senator if there was not some question 

arising under the Constitution and laws of the United States that 

gave the court jurisdiction f 

Mr. WHYTE. It did nOtsuch thing. It was a question in regard 

to railroad bonds, e~clusively belonging to the constitution and laws 

of the State of Iowa. Thank God, this judicial tribunal had manli- ness enough to tell us that when inferior tribunals or supreme State 

courts sought to bind us to fraud and injustice, we were not bound to 

follow them into the mire of such a course. But that is not all, Mr. President. The Senator from Indiana is 

not content to bind us with the shackles of this beautiful court in 

the State of Louisiana, organized for the very purpose of the decision, as in old times they used to say of courts-martial, "organized to 

convict." Not satisfied with binding us with the shackles of a State 

court, one of whose judges had been one of the Lynch returning 

board that perpetrated the frauds on the people of Louisiana, he 

tells us that he has got another collar ob our necks. 

Mr. WEST. Will the Senator pardon met I did not catch his 

expression exactly. Did I understand him to say that one of the 

judges of the supreme court of Louisiana had been a member of the 

Lynch returning board f 

.Mr. WHYTE. One of the judges of one of those Louisiana courts, 

Hawkins, I say was a member of the Lynch returning board. 

Mr. WEST. But he was a judge of an inferior court and never had this question before him. He was appointed subsequently. 

Ml·. WHY'l'E. One ofthe decisions of an inferior court was read, as 

I understand-for I cannot find the book-and that was a decision 

from that very court of which Hawkins was a judge. I may be 

wrong for I have not seen the book; but I thought it was so read. Mr. WEST. It was the same court, but not the same judge . Mr. WHYTE .. The same court but not the same judge! They 

change their judges so quickly down there that I do not know whether 

at the moment of the decision Hawkins had got in or got ont. 

[Laughter.] They have a summary mode of executing people on the 

bench in Louisiana in these days. 

Mr. WEST. Yes, and the Senator is quite as adroit in changing 

his position too. 

Mr. WHYTE. I have not tried to do so in the slightest degree. 

But I was going to say, that we are admonished also tha.t 'the President has recognized the Kellogg government and that we Me bound 

by that recognition. I admit that under advice which probably came from his own law officer and which he was bound to respect, he not 

being a lawyer and the presumption being that t.he Attorney-General 

of the United States was a good one, the President may have been 

induced to recognize a government that was unlawful in its character. 

He was so induced, n.nd he recognized some one whom he found in 

possession, as he says. But whom did he recognize Y Did he recognize the lawfully elected governor of Louisiana T Did he recognize 

the man who had received the most lawful votes at the election for 

governor of Louisiana 7 Did he sustain with the Army of the United 

States the Legislature whose members received the most votes for 

legislators in Louisiana T No sir; he recognized a man who had no title whatever to the office whlch he held; and I regret to say it; I 

blush with s}J.ame when I reflect upon that page of Ame1ican history 

which shall contain these words, which I read from the message of 

the President of the United States sent into this body on the 13th of 

January, 1875; sent here for our edification, for our information; 

sent here so that when we come to act upon this question of Louisiana 

affairs we may act intelligently, knowing the facts. While I blush 

that I have to make such an admission, r thank the President of the 

United States for plainly and bluntly telling us the truth : 

It has been bitterly and persistently alle~ed that Kellogg was not elected. 

Whether he was or not is not altogether certam, nor is it any more certain that his 

competitor, McEnery, was chosen. The election was a gigantic fraud, and there are no relia.ble returns of its result. 

And here we are asked to be bound by a recognition of the Kellogg ~overnment by the President, who, we must presume, has done it m the interest of peace; he might have believed that it was neces- sary for the preservation of the peace for him to take that step; but now when we come to act upon the ca-se of the election of Pinchback 

and the election of the Legislature which chose him to this body, we have the President qualifying his recowntion by telling us that the 

whole "election was a gigantic fraud. 

Sir1 shall we follow such recognition with these facts before our faceT 

No, su. If the supreme court of Louisiana had decided that the Legis- lature was a true and lawful Legislature, we are not bound by it; we are not bound by the recognition of the President of the United 

States if the whole statement made by him was, that it was a true 

and lawful election: but least of all are we bound when he tells us that the whole thing was" a gigantic fraud;" that there was no reliable result of the election ever ascertained. 

But, Mr. President, we are not left to these statements. Every 

Senator who has sought to inform himself on this subject (though 

those of us who have come here so recently have been compelled, I 

admit, to cram) from the report-this voluminous report of the Com~ 

mittee on Privileges and Elections made by Senator Carpenter-those 

of us who have sought to do our duty here have found the findings 

oi that committee, at least I have, honest and just, and I shall ue bound by them because in my conscience I believe it is the nearest 

truth that upon the evidence we can get. What do they show briefly T 

That report discloses this fact, that the actual returns of the election 

in Warmoth's hands which were not counted at first by the Wharton 

board but were counted by the De Feriet board, the board appointed 

by Governor Warmoth after the repealing law had been signed by 

him in November, 1872-a. new board- and counted again by the For- man board afterward in the State senate, showed that McEnery had a. majority of 9,fi06 over Kellogg; tbat the senate, with those holding 

over, stood-democrats 22, republicans 11, vacancies 2; the Hoose 

stood-democrats and conservatives 71, republicans 39, vacancies 7. 

This Legislature met -in extra session on the 9th of December, 1872, 

and were recognized by Governor Warmoth as the legal Legislature, 

and then the board appointed by the senate examined t he returns 

and gave McEnery a majority of 11,288. 

Any Senator can look at the report from pages 75 to 83 and he will 

find there the returns given by the Committee on Privileges and 

Elections from the papers which were produced in their committee- room. But the committee believed that there were vast frauds and 

such intimidation as to render the election no fair expression of the 

popular will, and so reported it to be utterly null and void. The 

Senate knows that that committee tried to get a bill pa sed ordering a new election, which failed; but whatever may be thought of the 

provisions of that bill, that is not a question now before the Senate. 

But the canvass of the Lynch board, the board which Pinchback rec- ognized, the board which counted in Kellogg and counted in the 

Legislature by whom Pinchback was elected-the canvas..'! of that 

board has become a scandal and a reproa-ch everywhere. 
52 CONGRESSIONAL. RECORD. MAROH 13, 

Now, in addition to what has been said by the Senate Committee on Privileges and Elections in regard to the count of the Lynch board, 

allow me to read from the report made in the House of Representatives in tho case of Sheridan vs. Pinchback. I maintain that all 

these documents and papers are to be taken and properly taken into 

considemtion in deciding this case. The same investigation which relates to this contest has also been 

had in the other House, and it is a remarkable circll1Il8tance in Ameri- can l)olitkal history. When the contest took place in the other 

House between Sheridan and Pinchback, the Committee on Elections was instructed to investigate that case. ·what was the anomalous 

condition of things which there occurred f I do not profess to have 

obtained all the political information on the subject that can be se- mned; but I have never heard before of a case of like character :in 

any legislative body. While a gentleman is knocking at the door- of 

the Senate, with 4!s credentials from the State of Louisiana, claiming a seat. in this boqy, he is standing ;t].so at the door of the Honse ·of Representatives, claiming a seat in that body for the same period 

of time, one seat for two years and the other for six years, including 

the same two years of the Forty-third Congress. His case was on trial after the beginning of the first session of that Congress. One 

of the members from :Massachusetts introduced a resolution into the 

Honse of Representatives proposing to admit Sypher and Pinchback, 

and one other, to seats on the floor of the House of Representatives as members of the Forty-third Congress; but that statesman from 

Massachusetts, who generally looks before he leaps, began to realize 

that if the Honse of Representatives admitted Pincbback to a seat 

there, his claim in the Senate was gone. So he gave him the privilege that we often see in the circus, of riding two horses. He had 

his eye on a seat in the Senate and he had his eye on a seat in the 

House. How could he help winning one¥ It seemed to be beyond 

human comprehension that he could fail in both. But the Representative from Massachusetts saw the difficulty, and with that astuteness 

for which we all give him credit, be quietly took Mr. Pinchback out 

of the resolution and sent his case to the Committee on Elections. 

What did they do there f Kept Sheridan out in the cold until the 

last hours of the expiring Forty-third Congress. Then they came to 

the conclusion that Pinchback bad not a ghost of a claim. That is 

not all. Both the majol'ity of the House committee and the minority 

of that committee reported against Pinch back; and yet he was a candidate for Congressman at large, running over the whole State with Kellogg, side by side with Kellogg, counted in by the Lynch board with 

Kellogg, while Sheridan was running on the McEnery ticket, side by 

side with John McEnery. What did the majority of the House com- mittee say about the Lynch board that counted Mr. Pinchback in 

the other House and Mr. Kellogg into the executive department of 

Louisianaf 

When this contest was first presented to the committee, the contestee, Pinchback, rested his case upon the canvass of the board known as "the Lynch board." 

Upon examination the ·{)()mmittee were satisfied that the Lynch board m!Mie its 

~~v!h1~t~~u~~~ft't:ed:~~di~i~~ts~~h:;~~fJif:~:~h~r ~!~i:lJ!~ by him. 

And then when speaking of the count in favor of Sheridan by the 

DeFeriet board, see what the majority of the House committee say 

of that: • 

Assuming that the original "primary returns" made to the governor from all 

the parishes of the State but two- were received by him, opened by him in the pres- ence of the Wharton board, delivered by him. to the De Feriet board, and trans- mitt.ed t.o the Forman board just as they had been received, (and these facts the 

additional proof shows,) we are t{) look to. what these returns show. They show 

that contestant, Sheridan, received 65,016 votes- · 

Which differs from McEnery's vote, that. being 65,529. McEnery 

received only 500 more votes on that DeFeriet count than SheridanThey show that contestant, Sheridan, received 65,016 votes, and contestee, Pinchb:wk, 54,402 votesWhile tho De Feriet board gave Kellogg 55,973. 

As to the correctnoos of this tabulation we have the sworn testimony of Mitchell, 

Forman, and Thomas, a majority of the board ; and, in addition to this, the admission of the contestee (page 3 of additional testimony) that it is a compilation of the r eturns before the Forman board. 

' And the committee say it is conclusive and they declare that Sheridan "was entitled to· the seat" and had been entitled to it from the 

very beginning of the Forty-third Congress; and yet he only obtained it in the expiring hours of that session. Now wha.t d.oes the 

minority, which reported that Sheridan was not entitled to his seat, 

say about the Lynch board : · 

.Is Mr. Pinchba.ck shown entitled upon the merits to this seat~ 

Your committee think not. Mr. Pinchback's ori~inal certificate, it was conceded, 

and Governor Kellogg's supplemental certificate, It is to be assumed, were issued upon the pretended canyass by the returning board known as the " Lynch board." 

As:mming that the Lynch board was the legal returning boardA .committee of the House assuming that the Lynch board was the 

legal returning board! Giving t he board that benefitand waiving the consideration of the effect of Mr. Pinchba{)k's default in ma.kin..,. no response to Mr. Sheridan's notice of contest, your committee are of opinion that 

the fact that the Lynch board never had possession of the election retw·ns, and 

therefore never canvassed them, has become a part of the political history of the 

country. They hold this fact to be so notorious that the House ought to take legislative notice of it in this contest. and may take like notice of it for the purpose of any appropriate le~islation. They report, therefore, that upon the case as pre- senteii to your committee, Mr. Pinchba.ck is not shown to be entitled to a seat in 

this Honse. 

That is signed by Messrs. Smith, Hazelton, Hyde, Todd and Thomas 

five of the members of the Committee on Elections of 1 the House of 

Representatives. l\Iy friend from "Wisconsin [Mr. HOWE] yester- day interrupted the Senator from Dell'\ware [Mr. SaULSBURY] while 

he was speaking in regard to this election, ;:illd I know t hat he will 

:pardon ~e for r~ferring to the fact when it is only to give him some informatJOn which he yesterday asked for. The Senator from Wisconsin asked whether the DeFeriet l10arcl had not thmwn out cer- tain parishes in their count. The Senator from Delaware was not at 

the moment quite prepared to answer the question. While he was speaking ,I examined the records and made up a tabulation to meet 

tha.t inquir~, bu~ did not li.ke to ,disturb the. proceedings of the Senate by mtroducmg lt. The De Fenet board d1d refuse to count six parishes-Iberia, IbervUle, Saint James, Saint Martin, Saint Tammany, 

and Terre Bonne. Look at the result declared by the Lynch board 

made up a.s we a.ll know that tabulation was made up from som~ copies of rej;urns that they got from the United States supervisors, 

from newspaper reports, from false affidavits ma-de to order as con- fessed by one of the witnesses, from a general estimate accordin(J" to 

population and the old party vote as to what the vote ought to h~ve been. Taking it with all those fallacies and absurdities, I give the 

Kello&"g government the Qenefit of tho e six parishes, and let us see how tne vote stands. McEnery had 65,579 and Kellogg had 55,973, . according to the DeFeriet board. The Forman board of the senate . increased McEnery's majm;ity to 11,000, but for the sake of the argument I take the lowest majority, 9,606; and I take Iberia Parish from 

the Lynch board, as given on page 191 of :Mr. Carpenter's report, and 

I give Kellogg a majority of 349; I give hiru in Jberville 1,548; I 

give him in Saint James 1,195; Igive him in Saint lartin 48 ; amlin 

good old Saint Tammany I give him 1; in Terre Bonne, 186-making : 3,327, which deducted from the 9,606 still leaves .McEnery's majority.- 6,279. 

Mr. HOWE. Will the Senator tell me where he gets those returns i · 

Mr. WHYTE. Yes, sir; from page 190 of Mr. Carpenter's report. 

Mr. HOWE. Butwheredid~fr.Carpenter'sreportgetthosereturns ' 

:Mr. WHYTE. From the report of the Lynch board. 

Mr. HOWE. From the return of the Lynch board f 

Afr. WHYTE. Yes, sir. · 1\Ir. HOWE. Now, either .Mr. Carpenter made a mistako or the Senator from Maryland made a mistake, or the Lynch board made a mistake in stating its own returns. 

l\Ir. WHYTE. It is more than likely I have made the mistake. 

Mr. HOWE. If the Senator from Maryland will give me the parishes--

Mr. WHYTE. I have not time; but I will give you the pages of 

the book, which I have marked. . l!ir. HOWE. The six parishes. 

Mr. WHYTE. If you will look at the return of the De Feriet board 

you will see they are left blank. 

Mr. HOWE. We are talking ~:~,bout the Lynch board, not the De 

Feriet board. Que of the parishes was Iberia} was it not Y 

Mr. WHYTE. Yes, sir. 

Mr. HOWE. The Lynch board returned its vote at 965 for Kellogg 

and 616 for McEnery. Another parish was Iberville, was it not f 

Mr. WHYTE. Yes, sir. Iberia Parish, which I find on page 190, is 

returned 965 for Kellogg au,~ 6.1.6. for M.cE.nery. That was the way I 

put it down. · · · 

1fr. HOWE. Now Iberville was, ~her t 

l\Ir. WHYTE. Yes, si;-. Mr. HOWE. Iberville was 2,239 for Kellagg. 

Mr. WHYTE. And 691 for McEnery, and that gtves 1,548 majority, 

according to my arithmetic. Mr. HOWE. What was the next 1 

Mr. WHYTE. Eighteen hundred and fifty-two for Kellogg in 

Saint James, and 657 for .McEnery. 

Mr. HOWE. Yes, sir. What is next ? 

ltfr. WHYTE. Saint Martin, 718 for Kellogg, 670 for McEnery. 

Mr. HOWE. Yes. What is next¥ 

Mr. WHYTE. Saint Tammany, 112 for ~ellogg and 111 for McEnery. 

ltfr. HOWE. Yes. What is nextl 

l\ir. WHYTE. Terre Bonne, 1,593 for Kellogg and 1,407 for McEnery. 

Mr. HOWE. In each of the parishes Kellogg had a large majority, 

but in all the parishes McEnery had a large majority. lle ides, this 

is only t.he effect which would. be produced upon the result by t he 

counting of the six parishes not counted at all by the McEnery 

board.. ·when you have clone that, before you undertake to st at e actual results in Louisiana you must correct the r etUI·ns from pari hes. from which forged returns are alleged to have IJeen presented, and in 

addition to that, if the SenatOl' will allow me, you must ascertain as. well as you can what precincts from parishes giving partial ret nrns.. were thrown out by the supervisor and in what p1·ecincts the com- missioners of election stuffed the boxes. These corrections must IJ 

made before you can undertake to state definitely what was t he re- turn according tT> the fact. 

Mr. WHYTE. The Senator from Wisconsin entirely misundor-. stood me if he supposed that I was arguing in favor of McEn ry'~ 

right to the seat of governor of Louisiana.. I have not said a word. of 

that character on this floor. I have accepted the report of the Senat· 
1875. CONGRESSIONAL RECORD. 53 

tor from Wisconsin, the late colleague of the present Senator, as the 

basis of my discussion of this case. · 

1\Ir. IIOWE. I understood the Senator to be arguing the proposition that if the returns from the six rejected parishes were added to 

the vote, take those returD.I:! as the Lynch board stated them, McEnery's 

majority would be larger instead of smaller. · Mr. WHYTE. I made no such argument. :Mr. HOWE. Then I misunderstood the Senator. 

Mr. WHYTE. Certainly the Senator from Wisconsin entirely misunderstood me. The only reference I made to those returns was to 

correct the Senator who yesterday stated what I am satisfied he 

believes to be true, that Kellogg was elected governor of Louisiana 

by tbe votes polled at that elect1011. Mr. HOWE. Yes, sir; I believe that. :Mr. WHYTE. He stated that yesterday; and when the Senator 

from Delaware referred to the count he said "Yes, but in that count 

you have thrown out six parishes;" and all for which I have referred 

t o the six parishes is to show that if we put into the DeFeriet count 

the count of the.Lyuch board a.s to those six parishes, the most favor-

:able count that can be made for Kellogg, it does not better Kellogg's ~ease but stillleavcs 1cEnery a large majority. 

Mr. HOWE. Well, .l\Ir. President, I admit if you only make the 'corrections which the returns from tho e six parishes require, still :McEnery will have a majority; but then I say you mu t make further , deductions because of retn~ns made from other parishes which are :said to have been forged and not true returns, and then again from • other returns made from other parishes you must make large dednc- . tiona because of stuffed ballot-boxes, the testimonv of which is here. 

I did not mention these other facts yesterday, because the Senator 

frol)l Delaware said very shrewdly and candidly that he preferred to · make his own speech, and I knew he could make his speech a great · deal better than I could make it, and I yielded at once. Mr. SAULSBURY. I hope the Senator from Wisconsin will pardon me if I now, in view of the detailed statement made by the Senator 

from Maryland aa to the true results of the election by the actual · count, ask him to withdraw the opinion which he expressed yesterday that Kellogg was elected. Mr. HOWE. No; I would rather repeat the statement, if it is all 

the same to my friends on the other side of the Chamber. 

Mr. WHYTE. 1\fr. Presiuent, of course the Senator from Wisconsin has the advantage of me; he has been here for a long-continued 

period and has listened to all the e debat-es. One of my friends in 

the rear says he is to bo pitied, and probably he is. [Laughter.] 

Probably the Senate is more to be pitied now, for I am taking up so much of its time. 

1\fr. HOWE. I was about to make a request of myfriend. I know 

he has no animosity against me, and::{, think he ought not to charge me with having listened to all the speeches that have been made on this subject. LLaughtor.] 

Mr. WHYTE. I was going to ask my friend from Wisconsin a question myself, whether or not when he was speaking of forgeries awhile 

go he did not know and diu not hear during the flagellation of · peech upon this subject that he has received during the last Con- :gress, whether it was not beaten into him, that those forged returns .actually if thrown out made in favor of McEnery's government' 

Mr. HOWE. Yes, I have hearcl that said on this floor. Exactly 

-what e:tfect would be produced by substituting true returns for forged 

etnrns, I do not think has been accurately calculated even in this 

protracted debate heretofore, and I am sure my friend, if he is dis- ,creet, will not undertake to calculate it just now. 

Mr. WHYTE. Now then, Mr. Prest dent, I do not see how my friend 

from Wisconsin and I can differ. I do not see why we cannot vote 

together. I am content to believe that there was a va.st amotmt of 

wrong and forgery and intimidation, if you please, in that election 

in Louisiana. 1 do not admire the system of election tactics that 

prevails in some rcgious of country. I have myself in early life felt 

some of the ad verse ffocts of fraud and perjury and intimidation and 

rascality at the polls, and I know that there are bad men in all parties 

who often assume tl10 machinery of elections and compromise the 

honest. That which I did more than twenty years ago in the House 

of Representatives I stand here to-day to do, protest against fraud 

and rascality at elections and to exclude from this body and the o~her Honse every man who comes with credentials tainted with 

v10leuce n.nu fraud. I care not to what party he belongs, he degrades 

either and he shall never receive my support and my sustentation. No, sir; I am on tho record iu regard to that, in those days when 

blood ran through the streets of my own city and fraud was rampant 

at every polling place. Send. them back whenever they colfle here 

with polluted certificates of election. Let us act together and unite on such common grounds as this, and I pledge myself to the Senator 

from Wiscon in whenever the facts disclo e that a fair expression of 

the popular will was not had, I will stand side by side with him and 

close these doors upon a m:m of any party that comes to pollute the 

integrity of th~ budy. Now let the Senator stand upon that platform of patriotism with me. 

1\Ir. HOWE. The Senator will allow me to assure him that I will 

stand there as lonc:r as 1 am able to stand anywhere. 1\fr. WHYTE. fhavo no doubt of it; and with all his intelligence, 

when be uomes to decide that question his judgment will be ba.sed 

upon facts and not upon feelings. 

But, sir, I know that I have wearied the Senate. It seems to have 

been presumption in me to have occupied its time, coming so recently 

within its walls; but I consider this question vital to the purity of 

election; I consider it vital to the peace and perpetuity of .the established institutions of our country; I consider that it addre, ses itself 

to our consciences and to our sense of right; .and therefore as long as I am a member of this body I feel that I shall be faithle s to my duty 

if I do not stand up here to protest against any man's admission who 

does not come "elected b;y the lawful Legislature of a State." 

But, 1\Ir. President, I meant to say, when talking about recognition, 

what did this Senate do and what did the House of Repre entatives 

do when you came to count the last electoral vote for Pr~ident of the 

United States' Were not t.he electors chosen at the same election T 

Were there not the same reasons applying T Were there not t\YO sets 

of electors acting in Louisiana, some voting for Greeley and some for 

Grant'!' Were there not two returns before the joint con~ention f 

And what did you f You counted out the vote of Louisiana altogether. 

Now, Mr. President, all I ask, all that any fair and rea-sonable man can ask, is that the Senate will approach this subject bound by no recognition whether of President or judicial authority, bound only as under the Constitution oi the United States we are bound by our sense of duty, by the principles of justice, by the rules, which should 

govern us in d.llitinguishing between right and wrong. 

Mr. 1\IORTON. I desire to call the attention of the Senator from 

Maryland [~fr. WHYTE] to the authority which he referred to as showing that there are cases in which the Supreme Court of the 

United States will not follow t.he decisions of the State courts upon 

questions arising under the· constitution and laws of the State. I 

asked him if there was not some question of Federal authority arising in that case upon which the Supreme Court of the United State& 

could act. He said not. The Senator was mistaken. In the first 

place, the court got juris!liction of the caae because the plaintiff wa-s a citizen of another State and the defendant was a citizen of Iowa. 

The Supreme Court in that case recognized the general doctrine 

fully and strongly, but they made it an exception simply upon this 

ground : There ha-d b~en a long current of de~isions recognizing the 

power of the Legislature of Iowa to create municipal corporations 

with authority to issue bonds; there had been, however, :recently a decision of the supreme court of that State denying that authority; 

but the bond in controversy bad been issued by a corporation while 

the supreme court of that State was affirming the authority of the 

corporations; and therefore the question came up broadly whether 

the second decision of the supreme court of Iowa if applied to a pre~ 

vious contract was not in the ·nature of a law impairing the obligaa 

tion of contracts and prohibited by the Constitution of the United 

States. There is where the question arose; and the Supreme Court. of the United States used the following language in the very opinion 

to which the Senator referred : 

The sound and true rule is that if. the contract, when made1 was valid by the ia.wa 

of the State as then expounded by all departments of the Government and admin' 

istered in its courts of justice, its validity and obligation cannot be impaired by 

:0~ ~f~eb~~ a{)tion of legislation or decision of its courts altering the construeThe same principle applies 'vhere there is a change of judicial j)eci.sion as to the 

constitutional power of the Legislature to enact the law. To this rule, thus en- larged, we adhere. It is the law of this court. It rests upon the plainest princi- ples of ju~:~tice. To hold otherwise woulq be a unjust as to hold that rights :wquired 

under a statute may be lost by its repeal. The rule embra{)es this case. Bonds and coupons like these, by universal commercial usage and consent, have 

all the qualities of commercial paper. If the plaintiffs recover in this case, they 

will be entitled to the amount specified, &o. (1 Wallace, 206.) · 

It was put upon that ground and upon that ground only, that it was in effect to impair the obligation of the contract, which the Constitution of the United States expressly prohibited, and even in that case a minority of the court dissented, and Judge Miller held that even in that case the United States courts were bound to follow the 

decision of the State courts, and went on to state the doctrintl at 

great length in a very able opinion; so that this case does not at all 

interfere with the statement that I made in regard to·what was the 

uniform decision of the Supreme Court of the United States. 

The PRESIDING OFFICER. The question is on the amendment 

proposed by the Senator from Vermont [Mr. EDMUNDS] to the reso- lution of the Senat.or from Indiana, [1\Ir. MORTON.] ~fr. CONKLING. If no Senator wishes to address the Senate, I move that the Senate proceed to the consideration of executive business- a motion which I will withdraw, of course, if any Senator wishes to 

take the floor. 

The motion was agreed to ; and the Senate proceeded to the con- sideration of executive business. After five minutes spent in execu- tive session tho doors wero reopened, and (at three o'clock and fortyfour minutes p. m.) the Senate adjourned. 

~SENATE. 

MONDAY, March 15, 187 i-~ 

Prayer by the Chaplain, Rev. BYRON SUNDERLAND, D. D. 

The Journal of the proceedings of Saturday last was read and approved. FISH AND FISHERIES. 

Mr. ANTHONY. The Committee on Printin~, to whom was re- ferred a re olution to print six hundred additional copies of the