1876. CONGRES.SION AL RECORD-SEN ATE. 211 

PETITIONS, ETC. 

The following petitions, &c., were presented at the Clerk's desk 

under tlle rule, and referred a,'l stated: 

By Mr. CHITTENDEN : The petition of the New York Temperance 

Society, J. N. Stearns, president, that the House of Represeutatives concur in the passage of the Senate bill to provide fQr a commission 

of inquiry concerning the alcoholic liquor traffic, to the Committee 

of Ways and Means. 

By .l\lr. GIBSON: The petition of Mrs. Emily B. Amory, wife of 

Charles B. Amory, late captain in the United Stat.es Army, for property taken aud supplies furnished the United States Army, to the 

Committee on War Claims. · By Mr. KIDDER: A paper relating to the establishment of a postroute from Glenwood, Yia Kidder and Brooklyn, to Tumerall, Dakota 

Territory, to the Committee on the Post-Office and Post-Roads. 

By Mr. McFARLAND: The petition of Joseph W. White, late a private in Company G, Fourth Regiment Tennessee Volunteer Infantry, for a pension, to the Committee on Invalid Pensions. 

By M.r. ROBERTS: The petition of William Bowen, that the com- mis ioners for the District of Columbia be directed to reconsider his 

claim for work and labor done under contract with said commissioners, and allow him an additiocal sum claimed to be due him, to the 

Committee for the District of Columbia. 

By Mr. SEELYE: The petition of James· M. Jones, Edward H. 

Walton, and other citizens of Wilmington, Delaware, for the appointment of a commission to inquire concerning the alcoholic liquor 

traffic, to the Committee of Ways and Means. 

By Mr. VANCE, of North Carolina: The petition of William H. 

Bradford, William T. Davis, and otller citizens of Wilmington, Delaware, of similar import, to the same committee. 

By Mr. WILLIA~1S, of Delaware: The petition of Thomas :M:. 

Corkle, jr., Julius Dudd, and other citizens of Wilmington, Delaware, 

of similar import, to the Committee on the Judiciary. 

. IN SENATE. 

FRIDAY, December 15, 1876. 

Prayer by the Chaplain, Rev. BYRON SUNDERLAND, D. D. 

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

BILLS INTRODUCED. 

:Mr. CHAFFEE asked, and by unanimous consent obtained, leave 

to introduce a bill (S. No. 1078) authorizing the citizens of Colorado, 

Nevada, and the Territories to fell and remove timber on the public 

domain for mining and domestic purposes; which was read twice by 

its title, referred to the Committee on Public Lands, and ordereu to 

be printed. 

Mr. KERNAN asked, and by unanimous consent obtaineq., leave to 

introduce a bill (S. No. 1079) for the extension of the patent known aa Reynold's patented brake for power-looms; which was react twice 

by its title, and, with the accompanying petition, referred to the Committee on Patents. 

Mr. CLAYTON asked, and by unanimous consent obtained, leave 

to introduce a bill (S. No.l081) for the relief of John Jackson; which was read twice by its title, referred to the CoLD.IDittee on Claims, and 

ordered to be printed. 

Mr. WALLACE a ked, and by unanimous consent obtained, leave 

to introduce a bill (S. No. 1080) for the relief of James Millenger; 

which was· read twice by its title. 

Mr. WALLACE. I move that the additional papers that I now present and tho e already on file in thiM caae be referred with the bill to 

the Committee on Claims. 

The motion wa'S agreed to. 

PACIFIC RAILROADS. 

Mr. THURMAN. If in order to make the motion now I move that 

tLe Lill (S. No. 984) to alter and amend the act entitled" An a-ct to aid 

in the construction of a railroad and telegraph line from the :Missouri 

River to the Pacific Ocean, and to secure to the Government the use of the same for postal, military, and other purposes," approved July 

1, 1862, and also to alter and amend the act of Congress approved July 

2, 1864, in amendment of said first-named act, reported from the Committee on the Judiciary at the last session, be made the special order 

for the second Tuesday in January. 

Mr. WEST. Would it not suit the convenience of the Senator from 

Ohio to postpone the order for a week further T I shall be compelled 

to IJe absent from the Senate at that time, if it is in session, and I believe some other Senators also will be away. If he will be kind enough 

to name the third Tuesday of January, I think it will answer the 

pnrpose. 

Mr. THURMAN. I certainly have every disposition to accommo- dattl, and it is my duty to accommodate the Senator from Louisiana, 

who is the chairman of the Committee on Ra.ilroacls, ancl who has a bill to which this bill may be said to be in antagonism; but this ueing a short session the bill might fail for want of time to consider it, 

especially as political matters may take np so much of our time. If 

the Senator would prefer to have it taken up befor" the holidays I 

would have no objection to doing that. [A pause.] The Senator from 

Louisiana suggests to me reasons why, I suppose, I ought to yield to 

his proposition, unless Senators will agree to take it up before the 

holidays, and perhaps there is no chance to do that. I will therefore 

say the third Tuesday iu January. . · The PRESIDENT pro tempo1·e. The Senator from Ohw moves that 

the bill which he has named be made the special order for the third 

Tuesday in January, which mot.ion requires a two-thirds vote. [Putting the question.) Two-thirds having voted for the motion, the bill 

is made the special order for that day. 

PA.Yl\IENT OF ELECTORAL MESSE~GERS. 

Mr. WINDOM. I am instructed by the Committ.ee on Appropriations, to whom was referred the bill (H. R. No. 4197) to provide for 

the payment of the electoral messengers, to report it without amendment, and I ask for its present consideration, if there be no objection. 

By unanimous consent, the Senate, as in Committee of the Whole, 

proceede(l to consider the bill. It appropriates $20,000 for payment 

of the messengers of the respective States for conveying to the seat 

of Government the vot.es of the electors of said States for President 

and Vice-President of the United States, at the rate of twenty-five 

cents for every mile of the estimated distance, by the most usual roa.(l 

tra.veled, from the place of meeting of the electors to the seat of Government of the United Statesr computed for the one distance only. 

.Mr. BAYARD. May I ask 1f this legislation is to provide for the 

payment of these persons going and returning f 

Mr. WINDOM. But one way. 

Mr. BAYARD. Is that the usual provision 7 

Mr. WINDOM. I waa going to make a brief statement as to the 

law on the subject, as we understand it. By the act of March 1, 1792, 

section 7, it was provided that they should be paid one way twentyfive cents per mile. By the act of February 11, 1825, it was provided 

that they should be paid twenty-five cents a mile for both ways, going and returning. The Revisetl Statutes provide for paying only one way, and the Committee on Appropriations have recommended the 

appropriation upon the law as it now stands. I believe the Senator 

from Massachusetts [Mr. BouTWELL] has some suggestions to make 

upon the subject. The committee did not feel at liberty to make the 

appropriation upon any other basis than what they supposed to be 

the existing law, and '"e have ha-d information from the Treasury 

Department that under the Revised Statutes they would pay but one wav twenty-five cents. :r;lr. BOUTWELL. My attent.ion was called to this subject by the 

Secretary of the Treasury· and I have examined the statutes. I have 

also a. report here from theFirt~tComptroJler,from whichperhapst,he 

Senate will better understand the stato of the law and the change that was made, as I think, by the commissioners in the revi!;ion. I have no doubt they altered the statute from what it was before. At any rate 

they changed the statute as far as the constructwn of it is concerned 

at the Treasury. I ask that the copy of the letter of the Comptroller 

to the Secretary of the Treasury be read. 

The PRESIDENT p1·o tempore. The letter will be reported. 

The Chief Clerk read as follows: 

TREASURY DEP.A.RTMENT, FmsT COMPTROLLER'S 0FFJCE, 

W118hington, D. 0., December 8, 187Jl. 

Sir: On examination I find there is no appropriation for paying t be mileage of mes- sengers b-ringmg'tho electoral •otes of the several Sta~ tQ Washington, and mileage cannot be paill until an appropriation for that purpose shall hu.,-e been made. 

By act of June 10, 1t;72, an appropriation of $2.J,OOO was mado for pay of m<>ssen- gera of that year. Tho amount paitl mo. sengers fouryears a~o was$17,46:J.25: add 

for Colorado $!Jl4.50; actually required. $18,379.75, if the mileage is notvatied from 

twenty-tlve cents per milo" going autl returning." 

Iu ad(lition there was pairl, under deficiency act of March 3, 1873, et;38 to a sec- ond messenger from Louisiana, who brought another cro:tificato of votes, mak.in,.,. 

tho actual payments $18 103.25. By act of .March 1, 1792, messengers were allowea 

twenty.fi\e cents per milo ''from the place of meetin:r of tbo electors to tho seat of 

Government of the United Stat~s ."-Stntute, volume 1, page 240, section 7. 

By act of February J 1, 1825, (4 Statutes, page 81,) the a1lowanco was the same per mile as in the act of 179~, with the words ''going and returning" added, in effect 

pa.\ ing both ways. 

By act of Au:rust 12, 1848, (9 Statutes, 295,) the allowance was fixed at twelve and a half cents per mile, ' ' goin~ and retmning," andla.ws aml pat·ts of laws inconsis.. tent woro repealed.. 

By joint resolution of January 6, 1849, (9 Statutes, 417,) tho last-mentioned pro via- ion was repealeu, and another adopted that the messengers for 1848 should he paid as if it had not been passed. Tbis ha.s been construed as reviving the act of 1825, 

not only for the election of 1848, but for subsequentolections, and messengers have 

been paid on this construction both ways. 

But by section 144 of tho R-evised Statutes. the law of 1792is re-enacted, although it had been superseded by the act of 1825, and had l1ad no force for that time, so that now, by virtno of this section 144, tho compensation is twenty-five cents per mile one wav only, and not" going a.nd returning." 

In callin~ your attention tQ the needed appropriation for the occasion, I beg also to mako this statement concerning the law rrlating to the rato of compensation. 

It is proper also to state that, from public information, it is probable tbn.tfrom each 

of four of the States t. wo persons will present themselves as messengers bearing the votes of electors, and to say that under existing law one only from each State can be paid. I suggest that, if mileage both ways be authorizeCI, an appropriation of 

$:25,000 be made, and that, if Congress deem it proper to pay two messengers from a State, they so ueclare. 

I am, very respectfully, 

Hon. LOT M. MORRILL, 

· R. W. TAYLER, Comptroller. · 

Secretary of tho Trca.S'IJ!I'Y. 

Mr. BOUTWELL. Not having for. myself any doubt th~t the law was nnintentionally changed by the commiss~oners \~ the revisioiJ 1 l 

will move to amend the bill as reported from the Committee on An~ 

propriati-ons so that it s~all rea<l twenty-five cents each way, follow-
212 CONGRESSIONAL RECORD-SENATE. DECEl\IBER 15, 

ing the old tatnte, ann that tlJe appropriation be incroase<l to $25,000, although I am inclined to tbiuk, perhap , that 000 would be sufficient. 

Mr. WINDOlf. The committee left it at 20,000 becan e, after consideling the suggestion of the Sen:1tor, they thought that would 

be enough. 

Mr. BOUTWELL. I suppose $20,000 will be enough. 

Mr. WINDOM. Probably $~0,000 will be enough, or $22,000 u.t the 

highest, on the basis the S nator 1:mggested . .Mr. THURMAN. Does the Senator propose to pay twenty-five 

ceuts mileage each way 7 

Mr. BOUTWELL. Yes, sir. 

:Mr. THURMAN. In addition to per diem compensation 7 

1\fr. BOUTWELL. There is no per diem compensation. 

Mr. THURMAN. Twenty-five cents a mile then includes all that 

they are to receiveT 

1\fr. BOUTWELL. Ye , sir. There is no per diem. 

lli. DAVIS. Ha there be n an amendment offered 7 

The PRESIDENT pro te~npore. The Senator from Massachusetts 

propose an amendment . .Mr. DAVIS. I ~hould like to have the amendment read. 

'The PRESIDENT pro tempo1·e. It will be reported. 

The CnrEF CLERK. In line 9 and 10 it is proposed to strike out the 

words" computed for the one tlistance only." · Mr. BOUTWELL. That would not be dtlfinite enough. I am looking for the old statute. If the Clork will read the bill I will indicate 

the words to be inserted. 

The Chief Clerk read the bill. 

Mr. BOUTWELL. In lines 9 and 10 I move to strike out the words u computed for the one dis·tance only," aud insert "going and retUlnin(J'" Mr. HAMLIN. That is the language of the old statute 7 

Mr. BOUTWELL. That is what it was. Mr. SHERMAN. I hope the question will be taken on the amendment. 

Mr. ALCORN and Mr. WINDOM addressed the Chair. 

Mr. WINDOM. I yield to the Senator from Mississippi. 

Mr. ALCORN. I do not desire to take the floor from my friend 

from Minnesota, and what I was about to say is not of very much importance, but neverthele s I deem it proper to say it. 

In the :fi.n;t place, I re~ard t.he custom of paying by mileage, since 

the invention of railroads and the cheapness of travel, a.a a very un- ef)nal way of compen ating either members of Congress or other offi · cials coming to tho capital upon official business. That is not the 

pt·op r mode of meting out and awarding just payment, even to old 

and discharged servant . .Members of Congress now, under the ope· 

ration of the law, are paid, I believe, twenty cents a mile each way 

for t.ravel. It is a fact kuown to the country that many members of 

Congre have railroad pa 'es awarded to them as compliments from 

railroad presidents, so that it does not cost them a dollar, a ide from 

their sleeping-car berths perhaps and their rations from their homes 

to this capital, and yet they deri,e, some of them, as much as 2,500 

in the way of mileage. Now, you propose that the e messengers shall 

be paid by the mile, and the honorable Senator from MasRachusetts 

propo es that it shall be both ways. The messenger from California, 

that comes here at an outlay, if he pays for his ticket each way, of 

not exceetling 250--

Mr. DAVIS. 0, no ; $500 probably. 

Mr. ALCORN. Well, put it at . 500. That is the maximum of his 

outlay. He is authorized, for about ten days' or two weeks' service at 

the outside, to draw from tl;te Trea ury a sum equal to ~ 000 in mon- ey. 'fhat is a pretty good business, I should say. He makes by the 

operation at Jeast $1,000 or $1,200 clear cash. The man who comes from Virginia or from Maryland gets not enough to pay his hotel bill 

during the time he is here presenting his return. 

I ubmit, Mr. Pre ident, whether this is an equal and just way to 

compensate tho e who perform service for the Government. · I say it; 

is unequal, but if that inequality shall continue to exist and if the 

principle of mileage shall be contjnued upon t.he statute-book, in 

Heaven's na,me 1 say that twe-nty-tiva cents a mile one way is amply 

sufficient. It will cover all the expenses of those who live remote 

from the capital at least, and it will put a very considerable snm of 

money into the pockets of all those messengers who live at the remote 

border of the nation. 

I shall vote a~ainst the amendment of the Senator from Ma sachusett , and I shall if I have the opportunity vot~ against the principle 

of mileage altogether. I would give these officials such pay a hould 

be estimated by the Secretary o the Tre3$ory as ~ufficient to cover railroad rates. I woulcl allow them compen ation for the amonnt of 

tbeir traveling expenses and a certain p~r diem for tqeir pay. An 

officer performing duty for the Government of 'this nfl,ture shoulcl not 

look to it as a means of making money. A compensa.tion ~Snffioi nt 

to re-imburse the citizen who discharges this clnty is amply sqff]cient. 

I should be willing to go even further than that, and make coqtribntion in a just mannerfor his time; but I would not be willing to malre 

compensation here at the rate of !300 a day for the time of some mes- sengers who corne from the eastern seaboard to tile capital. 

Mr. WINDOM. I only wish to say that the Committee on Appropriations endeavored to conform to the existin~ law on the subject. They were aware of the fact that for severalelectwns past the compensation 

has b en twenty-five cents a mile each way, and it was the impre ion 

generall. I t hink that t hat would be the compeu. at ion. It i probably 

the impre sion that many of th£>se mes engers have. The Revi ed tatute however, which tho Senator from Mas achu ettsthinkshavemade 

the change ·unintentionally, make it but twenty-five cents covering 

both way~. The committee, therefore, conformiug to the stat nte, have reported the bill, and I submit the question to the Senate wbether- the 

amendment should prevail or not. My own judgment is that tw ntyfive cents per mile one way is pretty fair compen ation, and that is 

what we report. I think it will pay the traveling expenses and allow a fair compen ation for the time. 

:Mr. BOUTWELL. I introduced this amendment chiefly be0:1n. e it 

conforms to what has been the law and the practice from 1 25 without any interruption. In 1847 Congress did pa sa re olution redncing the pa.y of these messengers to twenty-five cent a mile reckoninrr one way, but in 1848 that resolution was re cinded by Congre 3 auJ 

the old rate of twenty-five cents each way re-e tabli bed. T!Jat ba.s 

continued until the commis ioners for revi ing t.he statute incorporated the old act of 179':2, paying no regard to that of 1825 or t!Je ubsef)uent legi, lation. Therefore, acting for the Committee on the Re- vi ion of the Laws, I thoug-ht it my duty to call the attention of the 

Seuate t o this error. But I am also of opinion that the compensation was not disproportionate to the service when you consider the character of the service and the character of the gentlemE'n who nre likely 

to be intTnsted wi~h its performance. lt is upon the whole not a large 

matter for t.he country that we pay 20,000 once in four years for tb is service. I suppose twenty-five cents a mile one way will jn t about 

pay tbe expenses of a person traveling over the country ancll ave him httle in compensation for his time. I am of opinion that we ought to re-establish the law, because it is the law, and t!Jese places 

have been taken under the expectation that the old provisions wonld 

be ob erved in the payment. I think also it is only a proper thing 

forthecountrytopaycompen!lationasliberal as this will be at twentyfive cents a mile; and if our predecessors twenty years ago could pay 

it, I think it can be paid now. Mr. ALCORN. A word, sir, in reply to the Senator from Ma sa- chusetts. I do not think that he is warranted in saying that this law, 

which now re ts on the st:1tnte-book of the conntry, was an omi sion on the part of Congress. I do not think the facts will warrant him iu making that a ertion. It may be that in thisrespectit was an omission; !Jut I ha.d the honor to l>e upon the committee for the revision 

of the laws ancl the committee that pas ed upon this statute, and I am very ure that so far as I am concerned there was no omis ion in 

that respect. I remember to have looked at it, aUll I thought the rea- son very sufficient for havi.pg conformed to the principle that was enacted in 1847 of paying but one way. When, however, in 1 25, as the Senator says, Congress passed the law he refors to, we had none otbf'r than the dirt-road system in this countrv. The' mode of cheap 

travel that is now in operation did not then exi t. There ~ as another and more expensive antl more tedious mode of traveling, and the com- pensation sy tern by mileage at that time was a proper system; but now the whole thing is changed. Now we have cheap travel, rapid 

transit, aud I insist that the principle of compensation should be different. 

If the Senator from Massachu3etts desires to change the mode of 

payment, he should propose to do it by an amendwent of the law ; it 

should not go in the form of an amendment upon this appropriation bilL It should bo fixed upon the statute-book, that we may know 

from this time henceforward what. the law of tbe ca e is. He, however, propo e to go forward here and put this amendment on the appropriation bill of to-day, and he propo es at the arne time to l ave on the statute-book tho law as it has been enacted by t!Je Conrrre of 

the United States~ Upon what principle doe he defend his position f 

If it is right aml proper that this mode of compensation should be 

changed, and that the compensation should be increa etl, it is ri!"bt 

and proper at the same time that it should be changed by a law 

placed upon tbo statutes of the country. 

Mr. ED~lU~DS. Mr. President, we are about to signalize the 

fidelity that we professed so stl·ougly at the last ses ion to the im- maculate purit.y of the appropriation bills, by making a dig at the e gent1emen, ba.lf of whom have already performell the service and are entitled to their money, in order at the next presidential election, 

which some people think will come on immediately after the 4th of 

March or the second Wedne day of February or some time, to have anot her cry about reform ancl economy. Now I for one am goinrr to 

stick to the principle that I avowed at the la t se ion and a.t previous 

e sions, that it is not right, when a sum of money i to be appropriated to carry out existing law, to feel it to be our duty every t.irue or any timo, except in some extreme emergency, t.o go to tinkering t he 

law it elf. Here the statute has fixed the compensation of theRe 

gentlemen, and there is plainly no politics in it, for about as nearly n as you can divide there will be an equal number of bot h parties 

coming on, and sometimes from the same State. 

Now, then, if I can get a chance, I am going to move to strike out 

all that part of the bill which changes the law, and leave it a imple ~ppropri_a tion, which is consistent with What I, and, I believe, most 

of us, prea hed at the last seBSion, that if we want to change the laws we should do it upon considerations, but as long as we have them we will carrv them out. Is it in order now to move to strike out 7 

Mr, \ViNDOM. The bill does not change the law. 
. ' 

1876. CONGRESSIONAL RECORD-SENATE. 

Mr. EDMUNDS. I understood it ·chauged the law. 

l\ir. WINDOM. No. 

Mr. ED~IUNDS. If that is not the case, I oppose all amendments. 

Mr. KER.NAJ.~. I am oppo eel to the amendment on account of the 

principle allmlctl to by the Senator from Vermont and also because I 

LelieYe twenty-five cents a mile one way is quite enough. I do not 

think in an appropriation bill or in any other way it should be increased. I ask for the yeas and nays on the amendment of the Senator from M a&Sachusetts. · The yeas and nays were ordered. 

Mr. EDMlrnDS. Now, I should l.i.keto hear the bill read and, then 

the amendment proposed, so that we may know exactly what we are to vote upon. . Tile PRESIDENT pro tempore. The bill and amendment will be read. 

'l'he Chief Clerk read the bill and the amendment proposed by .Mr. BOUTWELL • 

.Mr. EDMUNDS. Now, I am going to vote against the amendment; 

anu, if that is defeated, I shall move to strike out all the law-making 

there is iu tile bill, o as to leave it on the existing law just as it is 

and make it a simple appropriation of that sum of money to pay thol:le mes: engers. 

Mr. GONKLING. How much wi11 that give them f 

M-r. EDMUNDS. The same sum that the l,lill does, it is s~d. 

The PRESIDENT pro tempore. The question is on the amendment 

of the Senator fJ:om Massachusetts, upon which the yeas and nays have 

been ordere1l. 

.Mr. HA.l\ILIN. I want to state in one word the reason which will 

induce me to vote for tbe amendment. The commission to revise the 

statutes, if I am right in my recollection, bad no earthly power to 

change a statute. We do know that a great many changes were made, some perhaps advisedly; some, it is believed, were made without the knowledge of anybody except the particular individual interested in making the particular change. The statute in this case was twenty-five cents a mile for travel each way. Now, [hold that 

the change has been made without the knowlerlge of Congress, and 

that this amendment is simply to make the law what it would h~tve 

been if a change had not been made surreptitiously, carelessly, or in some wa,y nobotly can tell how. We know bow the Revised Statntes were passeu. They were passed in a lump, and I am quite sure there are uo Senators in this body or probably nono outside of the mem- bers of the committee who will tell us tha,t they had any earthly 

know letlge of this change in the law. The amendment proposed put.s 

the law precisely where it was, puts the compensation at preci ely 

what it was; it puts it at what it shonld be if the statutes had been 

rev1sed as they onght to have been without a change. 

.Mr. THURi\IA.N. Mr. President, my first impres ion was to vote 

for the ~mentlmAnt, lmt after hearing the state of the qnestion and 

tbe suggestions that have been made, I feel con trained to vote against 

it, and 1 wi b to say in reply to what bas ,just fallen from my friend, 

the Senator from l\laine, that if we undertake to correct on. the appropriation bilh; all the errors of the Revised Statutes, we shall have our bands full, and our appropriation bills will be a very cmious set 

of document . I do not know how many er1·ors have already been 

corrected or been profes ed to be corrected by act of Congress, bnt 

my impression i more than two hundred; and I think the Senator 

from Ma sachu ett had a bill at the last session-! do not know 

whether it pas eel or not; I do not think i~ did-that proposed to cor- rect a-s many more. . 

.Mr. BOUTWELL. We have a long bill now that we shall bring up 

at the earliest po sib]e moment. 

Mr. THURMAN. That is a bill to correct a couple of hundred more. 1 do not kn,ow whether his bill correct.s them or changes the law; bnt 

it ~rofesses to make corrections. I do not think, to use a very familiar, but not elegant, expre sion, that you can lick the Revised Statutes into shape by a.ruendments to appropriation billa. · 

.Mr. CONKLlNG. Listening to the Senator from :Maine and the 

Senator froru Ohio, I feel moved to say that I think together they do 

the commissioners dishonor· overmuch. 'It is tr.ue, no doubt, tllat a good many, in number, mo t of them very trivial, errors, were found, 

despite all the winnowing process to which t.he consolidated statutes were subjectetl, still there. It is not true, however, that either sur- reptitiously or carele ly, borrowing a phrase from my honorable 

friend from Maine, the commissioners or anybody else, interpolaterl 

into the statutes that kind of error, that kind of change which would 

naturally be inferred from the tone in which the e Senators speak. 

It is not the duty, it is not the personal interest of the pre ent Committee on the Revision of the Laws1 or of any Senator who served on that committee heretofore, to defend a if aga:in ·t some personal re- :flect.ion the work done upon these statutes. The two Houses of Congre s directed not the committee of either or both Houses, but that a 

commission of external per!l-ons, appointed by the proper authorities, 

changed several times, sitting for years, shouJd go on nuder the directions given to them and con~Solidate the statutes. The function of 

the Committee on the Revision of Laws was not only supervisory 

merely, but, as every Senator who reflects one moment will see, it 

must necessarily have stopped with a very superficial supervisio11. 

Here were the statutes which had been amassed for eighty-seven 

years; they were very voluminous; anct, if I might make a remark 

without subjecting myself to the suspicion of being disrespectful to ih~ legislative literatnre of the country, I should say that tJ:ley were 

not all of them so artificially and perspicuously drawn as to make i~ 

a very ensy task for any commission to deduce a c1ear and harmoni- ous result. However, the commission for years worke(l npon these 

stntutes; one commissioner after another tiring of his work, virtually 

fainting before his task and giving way, resigned and another was appointed; :md in the end, in comparatively a brief period, the co~­

ruittees of the two Hou es were called upon to act on all this work. 

The Senator from Ohio-and no Senator had he been on the committ ee would have been able to do better than be-would have smiled 

at 1he idea that be was to take sixteen or eighteen volumes of statutes, and two or three ponderous volumes coming as the result from 

those, and by comparison, letter by letter and word by word, ascer- tain the fidelity of the work. But even had all that been done, it 

would have furnished no securi-ty. Whyf Because the pnrpo e was not to treasme up these statutes with verbal exactness, but to deduce 

with exactness from them, in brief phrase, the e ence of them all; 

and therefore, had the committee been able to gather and make a comparison in extenso, it would have amonuted to nothing. . Then, Mr. President, not to multiply worrls, the committee in both 

Houses I believe, as I feel very sure I may say the committee in this 

Hou e, devoted a great deal of time in subjecting thE' e statntes to aU 

the criticism of which they were susceptible; and then, as the Senator from Maine says, they were reported in block ; they were never even engrus ed; they were sent to the Printing Office and in an incredibly short time, considering the volume of the work, they were producAd in print, the print being treated as the engros ed bill. Now, 

that typographical errors, that verbal errors and omi ·sions such as this dropping the return phra e so that the twenty-five cents per mile 

turns out to be applicable to only one way-that such things occured 

is trne, and I submit that they were unavoidable. And I hope I shall 

be pardonetl by the Senate, having been myself at that time a mem- ber of the Committee on the Revi~Sion of the L'aws, if I listen some- times with a little disquiet to some general observations a if somebody 

and everybody bad been exceedingly heedless aD(l miscella.ueou , if I 

may so say, iu the way in which lle devoted himself to ttiis work. It 

is not trne. It is not true of the commission; it is not true of the com- mittee. If the whole thing bad to he done again, my impression is 

that it could not be improved on. The committee were very careful, 

when these st.atutes were submitted, t.o remind every Senator cogently 

that errors of this sort would be found; although they could not particularize tllem, the nature of the case was such that they could not 

but foresee them. · But enough on t.his subject; I want now to say one word about the 

amendment. I believe the Senator.from Massa-chusetts said that the 

change made by the Revised Statutes in this instance was an unau- thorized change. I think he must be quite right in that., because the 

law directed the commission to make t-hese statute in brevity as they were at largo. Certainly it did not authorize any cba.n~e. Making dne 

allowance for that, it neverthcle s torus ont that a cnange has been 

made. The law, for every purpose, in every sense, is now as it reads 

and as it would be had it been the purpose of every member of the 

two Houses to make that change. That being so, it carrnot be averred 

that on this appropriation bill we are going to change the law if we follow the law as it is. 

I shall vote against this amendment for this simple reason: Assuming th:tt the original tariff of compen ·ation was right in the days of 

stage-coaches and saddle-horse , I feel able myself to determine upon 

my own knowledge that twenty-five cents a mile for travel by the 

present conveyances isverysufficient not only to defray expense but 

to leave a considerable surplu . I Vfmture to say that any Senator, 

speaking now without reference to existing law, would affirm it to be 

sufficient to be paid at large, to these messengers traveling very long 

distances and receiving very much mileage, as some of them do; and ·· others, performing more trifling service, by journeying ales difltance. 

If it be trn~ then that as a fact now the compensation is sufficient, 

tinrling as we do, although by mi ·take, the law has been changed from 

what it used to be to make it o, I can hardly conceive that it is my 

duty to go back and vote for a compensation which I believe to be 

excessive because some law which once did, but does not now exi~St, 

fixed it, and fixed it upon conditions and for reasons which have 

pa · f':tl away. ~ir.-'fHUR~fAN. I shonld not say another word, but what has 

fallen from the Senatorfrom New York makes it proper that I.shonld sa.y that the farthest thing in the world from my int.entiou was to 

cast any reflection upon either the commission which made the com- pilation or on the two committees on the Revision of tho Laws. I 

know very well the difficnlty of performing such a duty a they attempted to perform. PoSI:lil>ly there is not a Senator who was on tlle 

floor then who has not a certain share of the responsibility, be~anse I 

think the revisers were accustomed to send advance sheets of their 

work before they matle their final report, and perhap if all the Seu- ·ators hatl gone to work and performed the duty they were called 

npon to perform, and pointed out any Cl'fOr8or omissionR, there would 

have been fewer errorl:l in the revision. But that wa.'i not to be ex- · pected of Senators in the vaca.tion or in the time Lhey had to spard 

here. They appointed a commission for that purpose. But, certainly, 

it is a very lameutalJle ~State of atl:'ail':) that Lhis book, wltich is all oYer 

the whole conntry in the hanus of every judge of a court ttiHl in the 

hands of all the lawyers of the courts, has been changed in between 

two and three hundred particulars since its enactment in June, 1874. 
2J4 CONGRESSIONAL REOORD-SE;N.ATE: DECEl\IBER 15, 

But. little over two years have gone by and more than two hundreu 

changes in the text of these Revised Statutes have been made-I do 

not know but nearly or quite three hnndred-ancl yet people are acting every day on the law which they find in this book, a.lthough it 

has been changed, and nobody can te1l what the law is nnles!! he 

takes the session laws and takes this book and makes with pen or penci I or in some other way marginal corrections or references to show 

him what the law is. This is so bad a state of affairs that it seems to me it will not be tolerable, especially if the bill of the Senator from 

Massachusetts shall pass which will add a couple of hundred more alterations in it; it will not be possible to get along without reprinting this book with the amendments that have been made. 

In respect, however, to the accuracy of such things, there is a bit 

of history in my own State which is worth relating. When a very 

young man, Salmon P. Chase undertook to publish an edition of all 

the statute laws that. had ever been enacted by Ohio, both in it ~ 

territorial condition and as a State from 1789 up to 1831. He accom- plished that work in three large volumes. He was then a yonn~ man unknown to fame. Some of us who were also yotmg men, lookmg at 

it and believing it. to be a very valuable contribution, petitioned the 

Legislature to have it printed at the public expense, and it was done; 

aud now, after forty-five years have passed since the publication of 

that work, I believe I can safely affirm that not one single error bas ever been discovered in it. 

That is not all. Some years afterward Judge Swan, of Ohio, a single individual, undertook to pu l)lisb the laws of Ohio as they then 

existed, which, of conr e, devolved upon him a similar duty to that 

performed by these commissioners, becansehe bad to decide what laws 

bad been rep~aled by implication or how t.he,v had been changed by 

conflict with other statutes. He publil)bed what was caUed "Swan's 

Sta.tutes," and now I can say here that after thirty years have pa ed 

since that compilation was publi hed I do no~ believe that one single error has been discovered in it. 

Mr. DOUT.WELL. Will the Senator allow me to ask whether the 

work of which he speaks in Ohio prepared by Governor Chase wa a compilat-ion of existing statutes, or whether it was an abbreviation 

and reproduction t Was it a revision of the laws or merely an aggrega.tion of statutes t 

Mr. THURMAN. I have already stated, if the Senator understood me--

.Mr. BOUTWELL. I did not. 

Mr. THURMAN. Tbat it was simply a reprint of the laws. 

Mr. BOUTWELL. That, I t.bink, is a different work. 

Mr. THURMAN. Undoubtedly it is very difl'erent indeed, because 

he had nothing thereto decide, but it wasnot so in thecai>eofSwan's 

Statutes, for Swan had to decide what laws were in force, what laws 

had been repealed by implication or modified in any way; and yet in 

that revision, which was published in 1840 and which contained laws 

that bad been enacted as early as 1802 and from that time down to · 1840, I think uot one error has ever been detected. I mention this to 

show that when .a very able man with peculiar talents for snob work 

goes to work upon the taak of reviewing statutes and takes sufficient 

time h:e can make pretty good work. 

Mr. CONKLJNG. Will the Senator allow me to make a sug~estion T 

I never ttmderstood before w by it was that Ohio was tbe favonte State 

to whieh at least 1.wo Presidents resorted for members of this com- mission. It was the favorite State; commissioners were appointed 

from there, am). when a vacancy occurred again appointments were made from Ohio once or twice. Now tltat I have heard from the Senator the peculiar and somewhat endemic facility which prevails in 

Ohio for doing such work, I understand why it was that the rest of 

the States were not permitted more largely to participate in doing 

the work. [Laughter.) 

llr. THURMAN. The only trouble is that the President in appointing commissioners did not take men who had proved themselves to be 

best qualified for this kind of work. . llr. CONKLING. They were either not living or othe~wise engaged. 

He could not take Chief-Justice Chase. ' 

Mr. THURMAN. No; but Judge Swan is living to-day and Mr. 

Corwine has also published a revision of the laws and was n.lso living; and Mr. Sayler was then living; but I do not want to go into 

this. I quite agree with the Senator from New York that almost any man in Ohio in the republican pa.rty is qualified for any office within 

the gift of the people of the country. [Laughter.] That is all I 

have to say. 

The PRESIDENT pro tempore. TlJe question is on the amendment 

of the Senator from Massachusetts, (Mr. BOUTWELL,] upon which the 

yeas and nays have been ordered. 

The question being taken by yeas and nays, resulted-yeas 13, nays 

31 ; as follows: 

YEAS-Messrs. Allison, Anthony, Bayard, Boutwell, Burnside, Chaffee, Dawes, 

Feny Hamlin, McCreery, Maxey, Mitchell, and Ransnm-13., NAYS-Messrs. Alcorn, Bamnm, maine, Bogy, Boot.h, Clayton, Cockrell, Conklin.!!, Conover, Davis, Dorsey, Eaton, Erlmuuds, Frelin,ghuyRen, Hamilt-on, Harvey, 

Hitchcock, Ingalls, Johnston, Jones of :Florida, Kernan, Key, Morrill, Paddock, 

Price, Sherman, Thurman, Wallace, Windom, Witbe111, and Wl"ight--3l. 

ABSENT-Messrs. Bruce, Cameron of Pennayh·ania, Cameron of Wisconsin, 

Chri tin.ncy, Cooper, Cragin, Donnis, Goldthwaite, Gordou, Howe, Jones of Nevada, 

Kelly, Logan, McDonald, McMillan, Merrimon, Morton, Norwood. Oglesby, Patter- son, Ranuolph, Robertson, Sargent, Saulsbury, Sharon, Spencer, Stevenson, Teller, 

Wadleigh, West, and Wbyte--31. 

So the amendment was rejected. 

Mr. EDMUNDS. I movetostrikeoutall the bill exceptthe~dmple 

appropriat.ion of money to pay the me engers, so that it shall stand as a. mere appropriation bill under existing laws. 

The PRESIDENT pro tempore. The amendment will be re11ortecl. 

The CmEF CLERK. It is propo ed to strike out all after the words 

''United States," in line 6, as follows: 

At the rate of twenty-five cents for every mile of the e~timateil ilistanr.e by the most u ual road traveled, from the place of meet.ing of the electors to the seat of 

Government of the United States, computed fot· the one distauce only. 

So as to make the bill read : 

That for payment of the messengers of the respective States for com·eyin~r to the seat of Go,ernment the >otes of the electors of aid State for Presiuent and VicePresident of the United States, the Anm of $20,000 be, anu the same i,. hereuy, ap- propriated, out of any money in the Treasury not otherwise appropriated. 

Mr. WINDOM. I do not know t.hat there is any objection to the 

amendment, though I think the bill as reported does_ not change the 

exist.ing law. 

Mr. EDMUNDS. I know ; but it proposes to re-enact it. 

Mr. WINDOM. I want simply to explain that the opinion of the 

committee was that it did not change the existing law, but was in 

strict conformity to it, and they did not think it necessary to eud 

the bill back to the House on this, to some extent, technical objection. The language used is that by which the Department has c.ou- strued the existing law, twenty-five cents one way, and we simply 

put in words that construction, which I think does not change the law 

substantially. If it did: the committee would not have agreed to it. 

Mr. DAVIS ro. e. The PRESIDENT pro tempore. The morning hour has expired. 

Mr. WINDOM. I hope we may complete this bill. 

The PRESIDENT pro tempore. If there be no objection, the con- sideration of the bill will be continued as in Committee of the Whole. 

1\.lr. MITCHELL. It will not displace the regular order, I hope. 

The PRESIDENT pro temp01·e. The regular order will be subject to 

call. 

Mr. DAVIS. I understood, thongh not officially, that there was some doubt at the Treasury Department whether it was for travel one or both ways that mileage should be paid. I understood that from a messenger who brought returns here. When I saw the bill, the fact 

appeared that it was to be but one way; and then ~aring the Sunator from Ma sachusetts this morning saying that the Trea ury Department construed the law as authorizing the payment of mileage hut 

o11e way, I supposed it would do no harm to leave the bill as it now stands as there had been some doubt at the Department. 

Mr. WINDOM. If the Senator from West Virginia will allow me, 

I will read a. short telegram from the Treasury Department, dated December12: 

It is unde111tood in tlie Department that mileage is payable only one way and at twenty-five cents per mile. · L. M. MORRILL, Secretary. 

Upon the construction thus given, the committee did not think 

it necessary to recommend any ~hange in the bill as it came from the 

House. 

Mr. WRIGHT. I suggest to my friend from Vermont that the bill as it stands now is a mere recitation of the existing statutes; that it 

is not in terms, nor can it be justly claimed, that it re-enacts the law. 

1 t recites the existing statute a.nd says that compensation shall be paid 

upon the basis of the law as it now stands. I think the bill is not 

subject to the objectiGn that has been so often urged her and in which 

I have uniformly concurred. I suggest, therefore, that the better course is to allow the bill to remain aa it is. If I thought that by possibility it was subject to such objection or that it could be claimed Ly 

possibility that it was a change of existing statutes, I should favor 

t.he amendment. I have always favored amendments to a.ppropr~­

tion bills that looked to excluding from them anything like legislation. 

Mr. EDMUNDS. I do not think that the bill does change the ex- isting law in the sense of making a new law differe11t from what the 

present law is, but nevertheless it will be the last statute upon the 

subject, and it certainly undertakes, as we all agree, to put a con- struct:on upon the precedin~ statute. We happen to be apparently 

unanimously of opinion here that that construction is the correct one. But suppose somebody in the House of Representatives or here next 

year says, "Here is a precedent for construing a statute;" it is trne we all think we construe it right, but some of your people in the next case when you think they are not construing it aright will still have a precedent. The objection is exactly the same. You are undertaking to construe a. preceding statute in an important particular by this 

present law in appropriating money; and that is just as much further 

legislating as anything could be. It may not be so important particularly where the construction is c1ear; but it would be just as mnch 

legislating in an appropriation bill if this bill bad said" pay both 

ways." You are thus putting a construction on the former law, a construction which I a.gree with my friend f1·om Iowa it will not bear, 

and yet at the same time you would be doing precisely t.be thing you are doing now. Yon are putting now what we all agree i a right 

construction on an old law. The next hill will be pnttinrr a. con- struction which orne will say i right and some will say is wrong. 

But I do not want to take time about it. 

Tbe PRESIDENT pro tempore. The question is on the amendment 

proposed by the Senator from Vermont, [Mr. EDMUNDS.] 

The amendment was rejected. 
1876. CONGRESSIONAL RECORD- SENATE. 215 

The bill was reported to the Senate without amendment, ordered to a third reading, read the third time, and passed. 

?tfESSA.GE FROM THE llOUSE. 

A me sage from the House of Representatives, by Mr. GEORGE 'M. ADA~ , its Clerk, annonnced that the Hon e had agreed to some and 

disagreed to other amendments of the Senate to the bill (H. R. No. 3628) establishing post-roads. 

The message also announced t.hat the House had passed the following bills, in which it requested the concurrence of the Senate: 

A bill (H. R. No. 1874) granting a new register to the schooner,Carteret; and 

A bill (H. R. Ko. 3256) for the relief of John F. Sutherlin & Brother, 

of Parke County, Indiana. 

The mes age further announced that the Bouse had pas ed a reso- lution providing for the appointment of a committee to act in con- junction with any similar committee that may be appointed by the 

Senate to prepare and report, without delay, such a toensure, either 

legislative o1· con titutional, as may, in their judgment, be be. t calculated to in urea colmt of tho electoral vote for Pre ident and VicePresident, and a declaration of the result b.v a tribunal wbo e authority cnn determine the question and whose decision all will accept as 

:final. 

NOTICES OF BUSINESS. 

Mr. WRIGHT. I wish to give notice that I shall on Monday immediately after the expiration of the morning hour, if I can get the 

attention of the Senate, caU np the bill reported from the Committee on Civil Service and Retrenchment touching the salary of the President of the United States. It will be remembered that that bill was vetoed by a me age of t.he President aml was reported by "th~ com- mittre again recommentlin~ its pa sage. I do not propose at that time 

to take up the time of the Senate in j ts discussion, but shall a-sk a vote 

of the Senate, as I believe to ue my 'duty. 

Whilo I am on the :floor, I wish to say that to-morrow, or at some time thereafter, I hall ask leave to bring in a bill to provide a method 

for contests of the office of President and Vice-President of the United 

States. • • · Mr. DAWES. I should like to call up the resolution I reported yesterday in regard to the compensation of witnes es in attendance before committees, to be acted on. Mr. MITCHELL. I have no objection, with the understanding that 

it is sullject to a call for the regular order. 

The PRESIDENT pro tempore. Is there objection to laying aside 

tern porari ly the reznlar order for the purpose of considering the matter 

suggested by the ;:senator from Massachusetts f 

Mr. ED~1UNDS. I do not rise to object, but to say that two or three days ago I gave notice that I should on the next day move to 

take up Senate bill No. 1, my purpose having been not for passage or disc11 ion, but to move its reference to a committee. One of my sen- atorial brethren, for whose wishes I always entertain the highest re- spect, wi bed to make some observations upon that Lill when it should 

be taken up, and through indisposition be is unable to go on to-day, 

when I had intended to move to· take it up, as the matter under con- sidera.t-ion yesterday occupied the whole day. This leads me to say 

that I shall not move to take it up to-tlay; but I had intended, unless 

something el e were done on Monday, to call it up then. Now, however, a resolution from the House of Representatives upon that snbiect having come over, it is possible that the necessity for a reference 

of that particular bill, OL' for action upon that particular bill, ma.y be 

superseded, as of course the respect th~twe owe to the House of Rep- resentatives, as well as the high importance of the subject to which 

the resolution tbey have sent us refers, necessarily lead us to appoint a committee imilar to that which the House of Representatives have 

appointed, and to which, in effect, they invite our attention; so that, w ben the question comes up, we can tlea.l with it in the one way or the 

other, as may .,eem proper. I only say this now, in order to explain 

my not having moved this morning and not having moved yestertlay 

to take up the bill pursuant to the notice that I had given. ~lr. THUR~IAN. Is the regular. order upf 

The PRESIDENT pro ie111p01·e. The Senator from Massachusetts has 

suggested that it be laid aside temporarily, and it bas been doue with 

the concurrence of the Senator from Oregon for the purpose of taking 

up a resolution which the Senator from Mas achusett will tate. 

Mr. DAWES. For the purpose of considering a resolution reported 

by the Committee on Contingent Expenses :fixing the compensation 

for witnesses before Senate committees. Senators are aware that there are several committees or subcommittees now in various States exam- ining witnesses. There i::~ no fixed rule about their compensation except so far as the statute is concerned, which :fixes the compensation 

of witnesses 1mder certain circumstances. The Houso of Representatives has adopted a rule, and the committee reported a rule here fol- lowing the Honse rule, and that was reported yesterday and lies over. Senators will see the necessity of action on it. The committees now have no fixed rule by which they pay their witnesse . · · Mr. TH R~I.A.N. I wish to submit some ob ervations on the reso- lution offered by the Senator from Oregon, anu if this matter can be 

di posed of without debat-e I shall not object. Mr. DAWES. I do not think it will lead to debate. 

FEES OF WITNESSES. 

Mr. MITCHELL. I _ only consent that it be taken np subject to 

the call for tbc 1egnlar order. The PRESIDENT p1·o tempore. The resolution, as amended by the 

committee, wi 11 bo reported. 

The Chief Clerk rea,d as follows : R~l ed, That the rule for paying witne~ses summonerl to appear before the 

Senate, or any of lts committees, shall be as follows: For each day a witnt>ss 

shall attend, the sum of $3; for ea{)b mile bo shall travel in coming to or goiug 

from the place of examination, the sum of five cents each way; but nothing shall 

be paid for traveling when the witness has been summoned at tho place of examination. 

Mr. MITCHELL. I move to insert after the word "way:" 

1'rovided, That -witnesses residing west of the one hundred and tenth meridian 

shall be paid tlte sum of seven cents eauh way for each mile they sl1all travel in 

coming to or :roing from the place of examination when the place of e10amiuation 

shall be east of the Mississippi River. 

So that if amended the resolntion will read : 

Resolved, That the rule for paying witn ~> l'l es summoned to appear beforetlH~ Sen ate, or :my of its eommittces, shall be M follows : For each day a witne s hall at- tend, the sum of ; for each mile he shall t1 a vel in coming to or goiJHt from the 

Place of exJmrination. the snm of fh·eeents each way: Provided, That witnesses re· Siding west of the one hunclrerl and ten h meridian shall be paul the snm of sm-en e<>nts oach way fot• each mile they shall tra.'"el in coming to or going from tbe place 

of examination when the place of examination shall bo ea t of the Mississippi River; 

but nothing shall be paid for traveling when the witness has been summoned at the 

place of examination. 

:Mr. DAWES. I su~gest to the Senator from Oregon that instead of 

that phraseology he auopt the phraseology that any witness who is 

obliged to travel, in obedienceto a summons, over a certain number 

of miles shall be entitled to seven cents for each mile he travels. I 

do not know how it ma.y be, but suppose that witneRses are Stlmmoned 

here from the State of Louisiana, or Florida, or Mi sissippi, as I un- uerstand may be done. It would seem that a rnle tbat applies to 

1hose summoned from the distant West o,ht to apply to' them also. I make that uggcstion. 

Mr. MITCHELL. I have no ohjc ction to such a tul'e·. 1 fix the 

limit at tho oue hundred and t('nili nH•ridinu, from t~c. fact. that 

that wonlrl 1•nable person to come froru all pnt oft he TJn"Hcd States 

at five cents per mile, except persons ·west of the on'e htill"clrcd and 

tenth mericlian. . Mr. DAWES. Senators from the distant southern Sta;fts ran t-ell 

better than I can whetl.Jer ih·e ceuts a mile i a proper co.!J!pensation 

for a witness corniug from Floritla, or Missis~ippi, or· Lot'iL'iaua,. The 

Senator will see that witnc es from those States 'voulu beexclucled 

from the compensa.tio:1 of seven ceut-s L mile, untlcf ~is· amendment. 

Mr. MITCllELL. I will state that it is no farthc·r, i:n· my j'nd~ent, 

from my recollection now, from the most distant pO'i"Uon of the ;:south- ern States to Washington than it is from the one hund~ed aml tenth 

meridian, which crosses the com1try at or near Sa.lt take. Mr. DAWES. I certainly cau llave no special _desire about it. If 

those Senators who live in those States think that is a- proper com- pensat.iou for those witne ses, I llave nothing to ay. Mr. 'VEST. If the Senator from Oregon wilt petl'!l'it me, I will ask 

the Senator from .Massachth etts whether this te ohi'tien provides com- pensation also for the witnesses who mny appeat· and attend at the summons of the committees that have Leen sent to the Southern 

States T 

1\lr. DAWES. Certainlv. 

Mr. WEST. Then I wi·ll say, so far as my State· is concerned, that 

five cents per mile will-not more thau just barely pay their expenses, because it is almost all st:.~ ge coacll or stea~er travel. · Mr. SHERMAN. They have compensation be ides. 

Mr. M lTC HELL. Three dollars a day dilling the time they attend. Mr. DAWES. They get$3 a day ami five cents a; ru.ile travel, unless 

summone<li'rom t-he place where the committee· i'& in se ion. 

1\Ir. WEST. Five cents a mile will barely pay- them in the State of 

Louisiana. Mr. MITCHELL. I will state in justification of the amendmrnt I 

have offereu, that the dil:ltance for which m·embersof Congress areal- lowed mileage from my own State is 4,0;)8' mile . The proposition 

proposed by the committee woultl make the com pen ation of witnes es from that State 200 and a fraction over. I will ·tate that t-hat would 

not pay the actual traveling expenses of a witne from Oregm1. I 

have made a careful calculation of it, antl Ithink in the neighborhood 

of $250 wonld pay thljl expenses of a witnes , providetl be was very eco- nomical in his disbursements in coming from Oregon here, but nothing 

less wonltl rlo it. I hope, therefore,. the amendment will be adopted. 

l\fr. ANTHONY. Suppose a witne sis summonefl from here to go to 

Oregon or California, the amendment would not apply in that case t 

l\11:. SHERMAN. The resolution only applies to committees of the 

Senate. 

Mr. DAWES. This is not changll.i~ the law; it is only fixing a rule 

for Senate committees. If the Senator from Rhode Island thinks there 

is any danger of committees· goirrg <JVer there and summoning wit- nesses from here, I think it would be better to provide for it in a. separate resolution. 

Mr. MITCHELL. There is not any danger of that at all. 

Mr. \VEST. Let the amenclruent be reported. 

The PRESIDENT pro tempare. The Secretary will report the amenr1 4 

ment. 
216 CONGRESSIONAL RECORD-SEN ATE. · DECEMBER 15, 

The CHIEF CLERK. It is proposed to add after the word" way," in 

tho eighth line of the resolution, the following proviso: 

Provided, That witnesses resifling west of the one hundred and tenth meriflian 

shall be paid the sum of seven cents each way, for eauh mile they shall travel, in 

coming to or ~roing from the place of examination, when the place of examination 

shall be east of the Mississippi River. 

Mr. DAWES. I call the attention of the Senator from Rhoue Island 

to its present phraseology in order to see that it is right. 

Mr. ANTHONY. I merely raised the question. I am willing it shall 

be settled by those who have the matter in charge. It seemed to me that it provided for paying a witness going a long distance one way 

and not going a long distance the other way, and the reason..given is 

that there is no occasion to go the other way. I think it may happen, 

and I think it has happened, that witnesses from here have been sum- moned by the authority of Congress to go to the Pacific coast. . Mr. MITCHELL. We can provldeforthatif theemergencyanses, 

but I do not think it is likelv to occur. The PRESIDENT pro tempore. The question is upon the amendment. of the Senator from Oregon. 

The amendment was agreed to; there being o:p. a division-ayes 24, 

noes14. 

The resolution as amended wa~ agreed to. 

ENTRANCE TO THE CAPITOL. 

Mr. ANTHONY. I offer the following resolution: 

R~olved. That the Committee on Public Buildings and Grounds be instructed to 

inquire into the expediency of erecting suitable temporary plank stairs on the 

steps of the Capitol. 

I beg to call the attention of my friend tbe chairman of th Committee on Public Buildings and Grounds [Mr. MORRILL] to this reso- lution. Those Senators who have had occa ion to ascend and de cend 

the steps at the west of the Capitol ba>e noticed that there bas been 

placed there a rickety, shackly, tumble-down thing that has <lone 

duty for four or five yea It was a. deformity when it was new; , and it has been growin(J' worse and worse year after year. I do not 

think that any respectable farrcer in Vermont or Rhode Island would 

have ·such an ascent to a crib or a barn, and it is a shame to place it 

at the entrance of this superb structure. It is necessary to have some wooden steps iu order to protect the stone stairs from the ice, 

but if it cannot be done in a tasteful and elegant way, as it ought to 

be done, certainly it need not be an unsightly thing as it is now. If 

there is no money in the Treasury applicable to this purpose I think 

that the country is not so impoverislleu that we cannot make a small 

appropriation for it. 

Mr. HAMLIN. I move to amend the resolution by adding: 

Or to make such provision as shall be necessary to keep the steps in proper con- dition. . 

Mr. ANTHONY. I accept that amendment. 

Mr. HAMLIN. I deny that there is any earthly necessity for putting wooden steps there. It may cost a very small sum, a very slight 

sum, but the ice can be removed almost. immediately. Those steps can be kept safe and in a proper condition for a very trifling sum, and 

it is better that they should be so kept than to be encumbered with 

anything upon them. That is my idea, and the Senator from Rhode 

Island accepting that modification, the whole subject will be before 

the committee. 

Mr. ANTHONY. There is a conflict of authority among the Sergeant-at-Arms, the architect of the Capitol, and the engineer in charge 

of the public buildings and grounds, as to who shall have the responsibility for certain portions of t.he grounds around this building. I 

recollect, some years ago when I saw a cow trampling down the grass 

that had just been put upon one of the east.ern plats, I sent for one of the officers to have it turned out, but I was very much in the con- dition in which I believe the royal household of Englanu was when 

the family were freezing because it was the duty of one hi~h official 

to lay t.he fire and the duty of another to kindle it, and neither could 

act without the other. I went and d1·ove out the cow myself; but 

I cannot put these st.airs up very well. 

Mr. HAMLIN. Mr. President--

1\Ir. THURMAN. I call for the regular order. 

Mr. CONKLING. This is regular order. 

The PRESIDENT pro tempore. The resolution is before the Senate 

subject to a call for the regular order. . 1\Ir. ANTHONY. I ask the Senator from Ohio to allow it to pass. 

:rtlr. THURMAN. I do not think it can be passed, from present appearances, without a dozen speeche . 

Mr. ANTHONY. I do not think either the Senator from Maine or myself takes the floor so often or occn pies it so long that we ought to 

be snubbed by the Senator from Ohio. . · Mr. THURMAN. I certainly am tho last m·an' to do it, especially 

when the Senator from Rhode I~land goes into his own biography and 

gives his experience as a cow-driver. I certainly must call for the 

re!rnlar order unless the vote can be taken. ~lr. HAMLIN. Mr. President, I occupy so much more time in this 

Senate than the Senator from Ohio, and inflict upon it so many more speeches than be does, that I will not say one word upon the question 

if we can have a vote. 

The PRESIDENT pro tempore. The amendment has been accepted 

by the mover of the resolution. The question is upon agreeing t~ the 

resolution as modified. 

The resolution, as modified, was agreed to. 

MESSAGE FRO!II THE HOUSE. 

A meAst~ge from the House of Representatives, by Mr. GEORGE M:. ADAMS, its Clerk, announced that the House had pas ed the followiug 

biUs and joint resolutions; in which it requested the concurrence of 

the Senate: 

A bill (H. R. No. 2278) to change the name of the }lort of entry of 

the district of Teche, in Louisiana, from Braahear to Morgan City; 

A joint re olntion (H. R. No. 171) in reference to congratulations 

from the republic of Pretoria, South Africa; and 

A joint re olution (H. R. No. 172) relating to congratulations from 

the .Argentine Republic. 

ENROLLED BILLS SIG.N'ED. 

The message also announced that the Speaker of the Hou e ltad · signed the following enrolled bills; and t-hey were thereupon sigueu 

by the President p1·o tempm·e: 

.A bill (S. No. 105) for the relief of Dickson Shinault, late a istant 

keeper of the light-house at Wolf-Trap light-station, in the State of 

Virginia; - A bill (S. No. 745)'to authorize the Secretary of the Treasury to 

issue a register and change the name of the brig A. S. Pennell to the 

City of Mou]e; and 

A bill (H. R. No. 4197) to provide for the payment of th~ electoral 

messengers. 

ADJOl"R..."\TMENT TO 1\101-.'DAY. 

On motion of Mr. WRIGHT, it was 

Ordered, That when the Senate adjourns to-day, it adjourn to meet on Monday noxt. 

ELECTORAL VOTE OF OREGON. 

The Senate resumecl the consideration of t.he resolution directing an inquiry a to the eligibility of J. W. Watts as ~n elector for the State 

of Oregon and the circumstances attending the appointment of elect- ors in t.ha.t State. 

Mr. THURMAN. Mr. President, I shall not weary the patience of 

the Senate by a discussion of the Oregon case, as it has been ca1led, 

at any great length. I do not rise to pronounce judgment 11pon that case. My object in rising is to contribute something to the hi tory of 

tha-.case which ought to be known, and to show that there are two 

side , or, at least, that tbere is another side than that which ha been pre ented in the speech delivered by the Senator from Indiana., [Mr. 

MORTON,] who, I regret f,o see, is not in his seat. 

This i a resolution of inquiry which instructs the Committee on Privileges and Elections to make certain inquiries and report theresults of their investigations and study to the Senate ; and I mu t con- fess that that being the case, I wa.s a little surpriseu to find in the 

RECORD a prejudgment of t.he whole case by the chairman of the 

committee who are to be instructed by the resolution to inquire and 

ascertain what the case is ; and not only a prejudgment of the ca e, 

but a prejudgment 'Of it in language certainly very severe, not to s:.a.y 

offensive, to the gentleman who fi.l Is the office of governor of the State 

of Oregon. The Senator from Indiana, the chairman of the committee who are to be instructed by this resolution, was pleaseu to say 

among other things: 

In reference to the action of the governor .of Oregon it may be said, in the first 

place, that the determination upon h1s part that the po tmaster, Watt , was inclipble was a judicial question, one that be had no right to de<1ide. I have examined 

the coru titution of Oregon, and it places in tl1e courts the judicial authority. That was a que lion be had no right to decide. The governor of Ore(l'on bad a Bimple 

Jlllliister'ial duty t<> perform, and that was tn certify who bad the bi~he t nurubm·of votes. Whether the person having the hi!rhest number was incli;riblo waa a ,judicial que .tion that he had no more power to¥ decide than I have, not living in Ore on 

at all. The question as to whether the minority candidate was elected waa a jnlli· 

cial qu tion of a. bi~rh character. lle had no power to decide it. It was a. clear usurpation upon his part. Neither the con titution of Oregon nor of any other "tate 

that I know of bas conferred judicial powers upon the ~overnor. o far a he is concerned with tlle electors his duty is simply ministeriaL that is, to certify who 

got the highest number of votes. Whenever be goes beyond that he tmn cenlls his 

duty. For him to undertake to say that Watts was ineligible was to exorcise judi- cial power with which ho waR ne\er invested, and for him to go beyond thllt and 

decide that the minority candidate was elected waa the exercise of a judicial powor which bo did not possess, and it was a decision right in tho face of the law, a palpa- ble wrong, for which there is no excuse. None can be offered. In onoof th south- ern states of Europe there used to be a custom that when a. man was han~ d or ex- ecuted for a crime, or when he was killed in the commission of a felony, 11 e was to be buried by the roadside, and it was the duty of every traveler who went along to throw a stone upon his grave, so that the monument of hiscrimemi;rhtbeincreased 

from year to year and from generation to ~eneration; , nd so in regard to tbi Oregon transaction, every future historian, from generation to generation, will add comment and condemnation upon that act which will increase its magnituue antl its 

infamy to the latest hour 

It cannot be denied that the Senator from Indiana has begun to 

throw his ston~ U'pon this grave, as be suppo es, of the governor of 

Oregon. I say nothing about the propriety of the chairman of tbe com- mittee who is to be charged by the Senate with making this inquiry thus prejudging the whole of it, and using such langnage in re pect 

of the go\ ern or of Oregon as he has seen fit to u e. I do not deny his 

right to say it, although differing with him upon the que tion of ta te or propriety; but I cannot help saying that it struck me as a little sin~ular that ~uch a prejudgment ~:;honld be announced before the 

resolution had even pa ed the Senate, and that such languagoshould 

be used toward the goYernor of that State. I propose to ~:;how, without deciding anything, that there is a question here, anll that the 

governor of Oregon has not acted so palpably wrong as to authorize 

the Senator from Indiana or anybody else to declare that he is infa- mous and drserves a monument of his infamy to be erected by every one who shall write the history of the country. 
1876. CONGRESSIONAL RECORD-SENATE. 217 

Let us see what are the questions involved in this so-called Oregon case. The first question i", was Watts ineligible to appointment as a presidential elector T I do not suppose that. there is ~he slightest difference of opinion among any of the lawyers or any people who read 

tho Constitution upon that point. I understand it to be universally 

admitted that be was ineligible, not ineligible simply to be an elector, 

but iueligiL1e to be appointed an elector, and, 'therefore, his appointment was. absfllutelv void. So far it is .all plain sailing, I suppose. 

In the second place,'! suppose it t.o be equally admitted by everybody 

that being ineligible to appointment, it does not matter, so far as the 

qnestion of his rightis _concerned, whether the voters of Oregon knew 

of his ineligibility or not, because to say that their ignorance of his 

ineligibility to appointment would give him a right to hold the office 

would make their ignorance superior to the Qonstitution ofthe United 

States, which says that he is ineligible to appointment. I read the 

law the other day as very propcrJy stated in Cnshing's Parliamentary 

Practice; but it requires no authority to show it. It was there stated 

that where a person is ineligible to election the votes for him are void no matter whether the electors knew of his ineligibility or not, and 

that must necessarily be so. Otherwise, as I have said, it would make 

their ignorance confer a title which is directly prohibited by the Constitution . . We have, then, two questions settled by unanimous consent, I take 

it: first., that Watts was ineligible to appointment, being a postmaster at the thne of the election; secondly, that his ineligibility is not a.t all affected by the knowledge of the voters of Oregon. In the third 

place, it follows as a. necessary corollary from this, that no resigna: 

tion by him of the office of postmaster could better his title._ Being 

utterly ineligible to appointment and having no title whatever by the 

appointment, he could not acquire a title by a resignation of his office 

afterward. All that is too plain, it seems to me, to require any argument; and I do not understand anybody to gainsay it. I understand 

fnrtherthatsubstantiaHy all three of these questions have been unani- mou ly decided by the judges of the supreme court of Rhode Island in a case that arose this very year and in regard to a presidential elector 

in tlutt State. 

We come then to the next question, what was the duty of the gov- ernor of Oregon f The Senator from Indiana says that the question 

whether 'Vatts was eligible or not was a judicial question, and that 

the sole dnty of the governor was a ministerial duty, that he had no judicial function whatever, that it was· therefore his duty simply to 

certify to the person who received the highest number of votes. He 

states that in the most absolute manner. If his statement be correct, 

then, if, instead of voting.for Watts, the voters who cast th~ir votes 

for him bad voted for Queen Victoria, it would have been the dnty 

of the governor to issue a certificate of election to Her Majesty the 

Queen tllat she was chosen elector of President and Vice-President 

for the State of Oregon ; or, as was witti_ly suggested to me by are- publican Senat.or the other day, if they had seen fit to vote for Goldsmith Maid, who runs better than even Watts, [langbter,l then it 

would have been the duty of the governor of Oregon to have certified that that brilliantpieceof horse-flesh, Goldsmith Maid, was elected 

elector of President and Vice-President of the United States for the 

State of. Oregon I 

The Senator from Indiana entirely mist-akes perhaps what is meant 

l)y "judicial functions." It is very true in Oregon, as in every State 

in the Union and in the Federal Government, that there is a department of government which is called the judiciary and another department called the executive and anothor the legislative, and lbe 

constitutions endeavor to partition out these great powers of government between these three departments; but does it follow from that 

that no power to judge in any case can be devolved either upon the 

legislative department or upon the executive department of the government or _an executive ofticed We could not get along with the 

Government one day on such an idea as that. 'l'he judicial power 

which the governor of Oregon cannot exercise, which the Legislature 

cannot exercise, the judicial power that Congress cannot exercise, t~at 

the President cannot exercise, is the power of deciding litigated cases that arise in jurisprudence, and is a wholly difierent thing from the 

exerci e of that quasi judicial power which executive officers are called 

upon every day_ to exercise and which they must exercise. Suppose 

you ~pply the reasoning of the Senator from Indiana to the Louisiana 

case; the partition between executive, legislative, and judicial pow- ers in the constitution of Louisiana is as perfect as in that of Oregon; 

and yet. there is a returning board that decides questions of law and 

fact and upon its decision of questions of law and ·fact casts out the 

vote of whole counties or whole precincts. In the same way, where 

there is a most regular government, where there is no such machinery as this retnrniug board, but where tpere is a board of canvassers as 

in every one of the New England States and in every northern State 

so far as I know, certainly intrmy own State, where there is a board 

of canvassers they have to decide many points that involve questions 

of law as well as questions of fact. 

To say, therefore, that this is a judicial question in the sense in 

which the judicial department of the Government is separated from 

lhe executive, as the Senator from Indiana has asserted, is in my 

humble judgment a confusion of ideas which is not at all warranted 

by the facts of the case. I shall not, however, undertake to decide 

that; but I do sn.y that in view of tho facts the governor of Oregon 

might conclude, as I will show before I have done that one at least 

of the able lawyers of the country did conclude, that be had that 

power and was Lound to exercise it. 

Mr. MITCHELL. Will the Senator yield to me for a moment T 

1\fr. THUR~lAN. Yes, sir. 

Mr. MITCHELL. I desire to ask the Senator from Ohio whether, in 

his judgment under the law, it was the duty of the governor of Oregon 

to pass upon the question either ministerially or jmlicially-I care not 

which yon call iii-as to the eligibility of l\Ir. Watts T 

l\lr. THURMAN. I said in the outset that I was not going now to 

pronounce my own judgment upon any of ·the qnestion in this case; 

that my only purpose was to show that there was another side tQ. the case. -

Mr. MITCHELL. One other question, if the Senator will allow me; 

and that is this: If it were his duty to pass npon t.hat question in this 

individual case, then would it be his dut.y in every case to pass upon 

the question of the eligibility of the candidate voted for, provided that 

question was brought to his notice' 

Mr. THUR~:l.A.N. Well, Mr. President, I hope the Senator will allow me to proceed. 

Mr. MITCHELL. I should like to have an answer to that question. 

Mr. THURMAN. I cannot answer categorically what the dut.v of 

the governor of Oregon under her constit.ution and laws, with which 

I am not at all familiar, may be. It is sufficient for my purpose, and 

that is what I said was my purpose, to show that he does not de erve to have the mark of infamy placed upon him which the Senat.or from 

Indiana .has endeavored to affix, and that there are two sides to this 

question. 

I will say in answer to the Senator now, t.hat if the voters of Oregon 

had voted for Queen Victoda, in my judgment it wonld not have been 

the duty of the governor of Oregon to give her a certificate that she was elected an elector of President and Vice-President for that State. As 

I said before, I am not familiar with the statutes of Oregon; but I ·understand that by the constitution or the laws, or both, of that StMe, 

these votes are to be canvassed by the secretary t>f state in the pre~ence 

of the governor. I do not perceive why the presence of the· governor 

is necel!lsary there, unless it is to see that the-re is a correct canvass. I 

may be wrong about that; but I cannot understan_d it to be so. The 

governor is to commission the persons found to be elect.ed, or in the case of electors of President and Vice-President he is to make a certificate of their election. The canvass is to be in his presence. Now, I 

will put a ca-se. Suppose that the secretary of state, op*!ning thereturns and making a tabulated statement of them had counted up so manj' for Watts~ and so many for Cronin, Watts being a perfectly eligible person, we will now presume, or so many for A, an eligible person, 

and so many forB, an eli~ible person, and the secretary of state had 

said, ':here A has a majonty of one hundred votes iu the State," and 

the governor, looking over it should see that there was an error in 

the addition, and that, in point of fact, B had a majority of one hundred votes; but the secretary should persist in saying, "No, A has the 

majorit.y; the addition is right;" would the governor of Oregon Le 

bound to issue a certificate to A 'f Would he be bound to say, "two 

and two do not make four T" Would he be bound, because the secre- tary of state obstinately refused to correct his addition, t.o i sue u cer- tificate to the wrong man f I fancy not. I fancy he is there to see that everything is done regularly, and that the persons who are qualified and receive the highest number of votes shall have a certificate. 

At least, I do not say so absolutely, but -I say it may be fairly argued 

that that is the case. · Well, then, if the governor bad any such power at all to decide to 

whom the certificate should be given, wh~re the person receiving t.he 

majority of votes was confessedly disqualified, let us see wh-at be 

could do. Let us suppose that these returns are being opened; and 

there is the governor; and my friend, the Senator from Oregon, or the Senator from Indiana, comes to him and says, "-Now, go-vernor, 

in this condition of affairs it is your duty to certify that Mr. Watts is 

elected." "But," says the governor~ "Mr. Watts is confe sedly disqualified t.o be appointed; hflw can I certify that he was appointed 

pursuant to the Constitution of the United 'States t" His certificate 

must be that the man was appointed pursuant to the Constitution of 

the United States and the laws of O.cegon. "Can I say that this mau was appointed pursuant to the Constitution of the United States 

when t.hatConstitntion absolutely forbids his appointment T" The Senator from Indiana might say to him "that is a question which yon are not t.o decide at all; that is a question that is to be decided in some other way; Congress is to decide it forsooth when it comes to 

count the votes. But then the Governor says to him "if it goes on until Congress decides the question, Congress must decide under the 

oat-hs of the members to support the Constitution that this m:m was ineligible to appoint_ment; and by that decision Oregon will lose onethirrl of her power in the electoral ~ollege and in the choice of President." 

Mr. LOGAN. Will the Senator from ObioMr. THURMAN. I beg not to be interrupted; I prefer not to be. 

That would be exa-ctly what the governor might say to him. Now, was it the duty of the governor of Oregon to Rhear t-hat State of one- third of its power in the electoral college. Certainly that is a question which might well be considered. 

If, then, the governor was not bound to certify the election of Watts 

in dire~t contravention of the Constitution which declared him ineligible to appointment, perhaps it may be said he should certify only 

• 
218 CONGRESSIONAL REOORD-SEN.._4._TE. DECEMBER 15, 

to the election of two electors, and that, a.s to Watts, be bad received a m!ljority of the votes, but that, being ineligible to appointmeut, he 

1·efn ·ed to certify to lJis election. Bnt the governor might say at once, 

"That raises a. most important qnestiou of law and of fact. It raises 

this qnestion of law: in tile case of an ineligible candidate, whose ineligibility is known to the voters, -is the man who received the next 

highest nnmber of votes elected f That is a question. You compel me to decide that question. I must decide it, because if I say tlJat 

there w:as a vacancy and only two men have been chosen, then I decide 

either one or two things; I decide that that is not the law in Oreg-on, or I rlecide that that being the law, the fact is that the voters of Oregon did not know of the ineligibility." Therefore you see that it 

would have been impossible for the governor of Oregon to have decided that he would certify to the election of bnt two men without 

deciding that it is not the law in Oregon that the man receiving the 

next highest number of votes is chosen where· the ineligibility of the 

candidate receiving the highest vote is known to the voters, and also 

without deciding that if that is the law in Oregon, then he must pass on the question of fact and say that the voters of Oregon did not know 

of the ineligibility of Watts. So you perceive that he has decided no question of law and no question of fact in giving the certificate 

to Cronin which he would not have been bound to deciue if he had 

refused t{) give the· certificate to Cronin. The thing was forced upon 

him; he had to decide it one way or he had to decide it the other. At 

any rate, without saying absolutely that this is so, this strikes me as being so plainly a view of the case that be might take, and that he 

might without the slightest reproach upon him as a man or as a law- yer, that I do again affirm that he is not subject to the anathemas 

which have been burled against him on account of his action. 

But, sir, there is still another thing that is to be considered. Suppose he bad taken the course that is suggested and certified only to 

the election of the two who were qualified and about whose election 

there was no dispute. Then another question immediately arises and 

that arises under the la.ws of Oregon and the laws of the Uuited 

StateR. Would there in that case have been a vacancy that could 

be filled by the two eertified electors, or would it be a case of a fail- ure to elect, to be supplied by a subsequent election by the voter!:! of 

Oregon, or by the Legislature of Ore~.on, or in such other way as her 

Legislature might providef Thatwiu be found to be perhaps in this case a very important question. It is argued with great force upon 

the statutes of Oregon, in an opinion which I shall presently send up 

ancl ask that the Secretary may read, that ineligibility did not create a vacancy wit.hin the true interpretation of the statutes of Oregon, 

and that if Cronin were not elected it was a case of a failure to elect, 

which is pro·vided for in section 134 of the Revised Statutes of the 

United States in these words: 

Whenever any State bas held an election for the purpos6 of choosing electors 

and has failed to make a choice on the day prescriberl by law, the electors may be 

appointed on a subsequent day in such a. manner as the Legislature of such State 

may direct. 

l!!r. CONKLING. What statute is that; the act of 1792! 

Mr. THURMAN. No; the act of 1845, now the one hundred and 

thirty-fourth section of the Revised Statutes. Let us take this case. Here were two gentlemen, whose names I do not recollect, who were undoubtedly elected. Then there was Watts. Now suppose that between Watts and Cronin there had been a tie, would t.hat have cre- ated any vacancy which the other two could have filled up 7 Would 

it have been the duty of the governor simply to certify two, and then 

for those two to go on and fill the vacancy! Is it not apparent that a case like that would be a .case of a failure to elect, and that the 

third person could only then be appointed in such manner as the Le~slatnre of Oregon should direct. 

The Senate will see, then, that here are questions that must be 

considered; they are questions that the governor of Oregon in the discharge of his duty was bound to consider; and now I have to say 

further upon this matter that, so far as I know the history of this case and of that gentleman, who certainly is a gentleman of high standing, so high that for six years he has been the governor of that State, that 

the Legislature of that State has chosen him to a seat in this body, 

and that on the 4th day of March next he .will take his seat hereenough, I say, of the history of this case and the character of that man is known -to protect him against the imputations that have been so freely lavished upon him. That he acted with great care, that he 

heard arguments on both sides, that he sought information from all 

sides, I believe is not de~ied. · , And now, sir, I bolU in my hand an opinion of one of the most eminentlawyersof my State, a man who has adorned the bench of the highest court in the city of Cincinnati ancl adorned the bar of the State 

for more than thirty years, nearly forty, a man Qf a perfectly spot- less reputation, distinguished for his ability, distinguished for his 

learning, and, above all, distinguished for his integrity. This lawyer, 

this judge, who never bas been a part.lsan, who has not acted with the 

democratic party for many a Ion~ year until this year, this lawyer, studying this case as an interestmg question, sent his opinion as a oitizen of the United States, we all being interested in it, to Governor 

Grover. Being afterward requested by the editor of the Ciuc~nnati 

Commercial to furnish a copy of the opinion which he hacl thus sent, 

he answered that be had kept no copy; but he would from memory 

antl fi·om his notes furnish as nearly as he could a copy of the opinion that he had sent to the governor of Oregon, with t~uch further additions ns subsequent study haq enabled him to arld to that opinion. 

This paper is tl.Je opinion of Judge George Hoatlly, of Cincinnati, 

and, althongh it is somewhat lengthy, I venture to say tllat uo Senator who. reads it will rise from. its perusal without instruction and 

without satisfaction. I ask that it may be read, aml when that is 

read I shall have said all that I desire to say. 

Mr. MITCHELL. I was out at the moment. And I de ire to inqnire 

of the Senator from Ohio if be stated that this opinion was furnished 

by Judge Hoadly to Governor Grover f . 

.Mr. THURMAN. ·You will see in the letter what is stated about 

that. 

Mr . .MITCHELL. · .A.t whose instance 1 

l\lr. THURMAN. I do not know. All I know about it is contained 

in the letter itself. Th<'~le tter is published at the instance of the editor 

of the Cincinnati Commercial, a ~epnblican as we all know. 

The PRESIDING OFFICER, (Mr. EATON in the c!Jair.) The paper . will be read if there be no objection. 

The Chief Clerk read as follows: 

DEAR Sm: I should be glad to comply, ii it were in my power, with yonr request to communicate my opinion given to the governor of Ot·egon relative t•l hi.~ dut .. v in 

the matter of tho presidential election. I wrote three letters to f!olou 1 Pelton, 

secretary of the democratic national executive committee, on this su\Jject, and forwarded copies of these letters to Go-vernor Grover. - -I kept, howe,·er, no copies myself, and cannot produce them from memory in their original form. Moreover, the subject has been one of coiLStatit study on my part since they were written, so that it is imposeible for me to produce them as ori~inally pro pared. I will endeavor, however, to present to you th.e arguments which have carri d conviction to ruy 

mind that Governor Grover has done hi~ exact duty in the premises. This will 

embrace the substance of the letters refctTed to. with, however, l..'trge athlilions, the result of subsequent study. I am quite cont-ent to be~r the odium which may be the result of being considered to have advised the course he took, for I \Jelieve he diu the ri~ht thing, in the right way, at the right time, and with the happiest 

result, probably the result of preventing a llilurpiug administration, not cho:;eu by 

tho people, and possibly the result of having prevented civil war. :My examination of orne parts of thi:; subject is not receu t.. 1 waR a clerk in tho 

law office of Salmon P. Chase when the Legislatme of Ohio pas etl the faruou!'l Law 

of 1848, divirling the county of Hamilton into two representative districts. I be- came his .iunior partner on the let of ]'ebrun.r:v, 1849, during the heat of the contest which arose out of the nulliftcation of that taw by the democracy of OWo. It is 

within my personal knowlerlge that Mr. Chase approved from the beginning the course taken by Ed ward C. Roll, who, as chief clerk of the court of common pleas 

of Hamilton County, was the returning board of that time, ant.l who, in obedience to his judgment that the law in question violated the constitution of Ohio gave the 

certificates of election to George E. Pugh, Alexander N. Pierce, Alcxanrler Lon.!:{, 

Henry Roedter, ancl Edwin L. Armstrong, who had been electetl representatives to the General Assembly by the democratic party of this county on general tiuket, in 

defiance of the statute dividing the county for representative purposes. As is well 

known, Mr. Pu,!rh ant.l hisassociatesobtainedandheld their seats in con equeuce of 

this action of Ulerk Roll. John G. Breslin was elected speaker of the honse of 

represent:Wves and Stanley Matthews clerk as the first re~ult. Salmon P. Chase was elected Uuiteu States Senator, and the black laws of Ohio were repealed as tho next result, and thereby it was rendererllawful for a colored. man to live :tncl to t o.::s· tify in courts of justice in Ohio. For this act of independent .;uclgment Mr. ltoll w:ts afterward brough_t to the bar of the court of common pleas, thou composed of 

three whig judges and one democratic judge, and tried fot· malfeasance 111 ofti ce, but was acquitted by the concurring jullgment of the president judge, llart., with 

his democratic and one of his whif! as omates. Since the happy result, in 1H4J, of 

my lamented friend Roll's inuepenuent course, I have never supposerl that it w.-~.s 

the duty of a returning officer to violate the Constitution of his country or that such 

violation could be oth11rwise than mischievous. 

The Constitution of the United States, article 2, sectiou 1, provides that each 

Sta.te shall appomt, in such manner as tho Legislature thereof may direct, a. numbor 

of electors eqq,al t-o t.be whole nnmber of Senators and Representatives to which 

the State may be entitled iu tha Congress. but no Senator or Repreaentative or per- son holrling an office of trust or profit under the United States shall be appointed an elector. 

The Reviserl. Statutes of the Uniwd States, section 136, provides that "It shall be 

the duty of the.executive of each State to cause three lists of the names of the 

electors of such State to be made and certified~ and to be delivered to the electors ou or before the clay ou which they are requirea by the preced~? section to meet." 

Section 138 p'rovides that "The electors shall make and sign tnree certificates of 

all the votes given by them, each of whieh certificates shall contain two distinct 

lists, one of the votes for President, anu the other of the votes for Vice-Presillent, 

and shall annex to each of the certificates one of the lists of electors, which shall 

have been furnished to them by direction of the executive of the State." Other pmvisions of the Revised Statutes require the electors to send one of these certificates 

by messenger and another by mail to the President of the Senate. The third is to be delivered to the judge of t.he Fecleral district court for the district in which the 

electors had assem blecl. . Section 142 is as follows: '' Congress shall be in session on the second Wednesday in February succeeding every mooting of the electors, and 

and the certilicates, or so many of them as have been received, shall then be opened, 

the votes counted, and the persl'1'JS to fill the office of President and Vice-President 

ascertained and declared agreeably to the Constitution." 

I lmderstand the facts to be that on the day of the presidential election, N ovem- ber 7 t 1876, John W. Watts, one of the candidates of the republican pa.rt.y for presidential elector in the State of Ore~;on, was postmaster at Lafayette, the county seat of Yamhill County, in the 8tateor Oregon; that he receiveli a. larger numl>er of votes a.t the election than his highest democratic opponent, E. A. Cronin, but that 

Lafayette Grover, governor o£ Oregon, delivered to Uronin tile lists providecl for in 

section 136 of the Revised Statutes; that the two republican electors, other than 

Watts. were named with Cronin as electors in such lists, and that Watts was not named as elector therein ; that thereupon the two republican electors whoso names were on the lists, either refusing to act with Cronin, or not, in fact, acting with him, 

accepted the resignation of Watts, ·eleQterl Watts to fill the vacancy caused by his own resignation, voted for Hayes and Wheeler, and forwarded their certificates 

without having the necessary lists attoohed to t4lem ; that Cronin elected two other 

persons to fill the vacancies caused by the non-action or refu alto act with him of 

the two republican electors, and the college of electors thus created ca t two >otes for Hayes and Wheeler and one vote for Tilden and Hendricks, and have forwarded 

the certificates, with the necessary lists furnish ell by the executive of the Stato at- tached, to the President of the Senate and t,he Federa.I. district judge. It is also to be stated that John W. Watts resigned his office of postma ter on the 13th clay of 

November, 1876. One elecooral vote has, therefore, been ca-st in the State of Oregon 

in accordance with the forms of law for Samuel J. Tildeu foc Pro itlent and Thomas A. Hendricks for Vice-President of the United States, thus securing them the one hundred and eighty.five votes necessary to elect. Presuming tbat the principle stated by JOHN 8HERMAN, Stanley Mat.t.hews, J . .A.. GARFlELD, and their a ;;ociatcs, 

in their reply to the deaocratio committee at New Orleans on the 16th of Novem-

'. 
187(). CONGRESSIONAL RECORD-SENATE. 2J9 

ber, 1876, in the followinj!worns: "It is, in our judgment, dtal to the preservation 

of constitutional liberty that th~ habit of obedience to the forms of law sJ:lou~d be sedulou~ly inculcatr<l and cultivated, and that the resort. to extra-constitutional means of redress for even actual grievances should be void and condemned a.& rev- olutionary, disorganizing, and tending w disorder and anarchy," will not be disputed bv any republican in the countr.v, and least of all by JOHX SHER)IAN, whose name beads the list of signatures to this letter, and who is to be Presiuent of the 

Senate\ as i~ now understood, and thus open the electoral vote, aml that therefore 

Saruu1· J. Tilden anti Thomas A. Hendricks will be peaceabl~ declared elected and 

inaugurated, it is ne>ey-theles an interesting historical qnestwn whether Governor 

Grover did right in investing Cronin with the authority exercised by him. 

:Mr. SHERMAN. Mr. President, I wish to interrupt that reading. 

For the first time there bas been brought to my attention here a roor- back published in the World entirely without founua.tion. I never heard a word of it in the Senat-eJ and I suppose 110 Senator ever heard a word of ip from anybody else. It is false from beginning to. end. 

What! A conspiracy to elect me President of the Senate! a thm~ I never thought of. But my friend, Judge Hoadly, who has balked 

about a good deal backward and forward at any rate, seems to have 

put that in his letter. I wish now, since it is brought officially to my 

notice, simply to say that it is a mere newspaper roorback, without 

any foundation of truth in it;· and I did not suppose any sensible mau in the United States would be deceived by 3i lie so palpably absurd. 

Mr. LOGAN. Is that part of Hoailly's opinion t 

Mr. SHERMAN. Certainly. 

Mr. THURMAN. I hope the reading will be allowed to proceed. 

The PRESIDING OFFICER. The reading will proceed. 

'l'he Chief Clerk proceeued with the reading, as follows: ~ 

That Watts was within the inhibition of the Constitution, and could not therefore be a11pointe<l au elector..!. needs no argument. Nevertheless, as the subject has 

been onco bronJ!ht before vongress and passed upon by some of the J!re:Ltest men of the time, I will take the liberty of a·tverting to the action then had, namely, in 1~37. llutfirstlet me say that a. further question is presented by 'Vatts's resignatiOn after the election, which was considered by Congress at tho same time. It appears at the presidential election of tho yea.r l~J6 several postmasters were chosen 

elect()rs. This fact being called to the attention of Mr. Henry Clay, the usual mo- tion for the appo.ntmeut of a joint committee of the Senate aml Hou.se to count the votes for President and Vice-President boin~ pending beforg the Senate, Mr. Clay, on the 2.~th ofJanuary,l837, moved thattbejoint committee bo required" also to inquire into tile expediency of aacertaining whether any >otes were given at thq re- cent election contrary to the prohibition contained in the seccond t>ection of t.he sec- oncl article of the Constitution, and, 1f a11y such votes were given, what ou~ht to be 

done with them, and whether any and wbatp•ovision ought to be made for securing a faithful obseiTance in future of that section of the Constitution." Mr. Clay's amemlruent was adopted, and the members of thejointcommitteeto count the vote.:; 

for President anrl Vice-President. and to discharge tho duties required by Mr. Clay's 

amendment, on the part of the Senate wore Felix: Grundy, of Tennessee; Hemy 

Cl.a.y, of Kentuc1.."",Y; and Silas Wright., of NP-w York. On the part of the House, 

Franc\s Thomas, of Maryland; Churchill C. Carubrelin!!, of New York; .Tohn Reed, 

of Mal! ·achusetts; Ht•nry W. Connor, of North Carolina; and Francis S. Lyon, of 

Alabama. This committee reJ?Orted unanimou ly to the two Houses as follows: 

"The committee aro of opimon tha~the second S{'Otion of the second article of 

the Constitution, which declares that no Senator or Representative, or person holding an office of tru11t or prout-uuder the United States, shall be appointed an elector, 

ought to be carried iu ill! whole spirit int<trigid execution, in order tu prevent the 

officers of the General Government from bringing their official power to influence 

the elections of President and Vice-President of the United States. This vrovis10n 

of the Constitution, it is bC'Jieved, oxclude8 and di8qualifies deputy postmasters from the appointment of electors, anrl tbe disqualification relates to the time of 

appointment, and that a resiguation of the office of doputy postmaster after his appointment as elector woulU not entitle him to vote as elector unuer the Constitution." 

In the debate in the House, Mr. Francis Thomas sai<l that the committee came unanimously to the conclusion that thoy (the posti.Illlsters in question) were not eligible at the time they were elected, and tht'refore the wholo proceeding was vitin.teu tib i1oitio." In the Senate, MI·. GriUidy stated that" in some instances not more than four or five electors ha>e been chosen in some of the States who are officers of 

the General Government, (deputy postmasters,) and that such votes are, in the 

opinion of t.be committee, not in confortl\ity with the Constitution. But at the same time the few votes thus given will not vary the result of the election, as it was not r..ontemplated by any one that the appointment of one ineligible elector would viti- ate the 'ote of llis State." Seo Gale and Seaton's Register of Debates in Congress, volume 13, part 1, pages 617 and 69~. and part 2, page 1,583. In the case of Searcy vs. Grow, 15 California Reports, 118. tho opinion was pronounced by Justice 

Baldwin, Justice Cope, and Cllief-Justice Field, now of the Supreme Court of the 

United Sta.tes, concuning. It was a contest for the office of sheriff of Siskiyou 

County. Grow had beeu returned as elected to that office. At tho time of the e1ection he was110 tmaster of the town of Yreka, the compensation of which exceeded 

$5()0 per annum. The court below found for Searcy, and Grow appealed. The con- stitution of California provides that, no person holding; any lucrative office under 

the Unite1l States or in their power shall be eligible to any civil office of profit un- der th1s State, p• ovided that offices in the militia., to which there is attached no an- nnal salary, or local oOicer·s and postrnMters, whose compensation docs not exceed 

$500 per annum, shall not be doomed lucrative." Grow wa'l postmaster a.t the time 

of the election, but hall resigned at the time of his qualification. The supreme court unanimously confirmed th"'judgmont of the court below. 

In the opmiou JLlstioe Baldwin says, (pa"'e l21 :) "The people in this case were clothed with this power of choice. Their s~ection of a. ca.ndidato gave him all the 

clairu to the office which he has. His title to the office comes from their designation of him as. heliff. But they could not designate or choose a man not eligible, that is, not capable of bein::t selected. They might select any man they chose, subject only to this exception, that the man they selected was capable of taking what they had 

the power to give. We do not see how the fact that he became capable of taking 

office after they had ex:erci ed their power ~n avail the appellant. If he wa.s not eligible at the time the votes were cast for him, the election failed. We do not see how it can be assumed that by the act of the canditlate the vot-es which, when cast, were ineffectual because not given for n. qualified candidate, became effectual to elect him to office." The same principle has been held l)ythe supreme court of the 

State of Oregon. In the case of McWhirter vs. Brainard, (5 Oregon Rep., 426,) the 

supreme com't of Oregon decided that. "the mode of can>assing the vote and the 

proclaD.Iation oft he governor are substantially only modes of ascertaining and pub- li shin~ the resnlt ot the 'ote." As the vote of the people in this ca.se was cast upon the 7th of November, the result of the vote depends necessarily upon the eligii.Jility to appointment as it then ensteu. It thus appears that Wat.ts was, within 

the inhibition of ths Constitution, incapable of being " appointed an elector,"a.nd 

that t.he defect wa.s not cured by his subsequent resignation of his office as post- maater. 

The dnties of the governor of Ore.~ron in the matter of the count a.ro pre<~ t-ri l,. l 

by tile third s;eotion of the forty-fourth chapter of tho compilatinn of '"en-mll:l11·.~ 

of Ore~on. Or~on General Laws, page 849: " The votus for the olecbri! shaJJ 

be gi,en. received, returned, and canva..~sed, as the same arc given, returned, an1 canvas ell for memhers of Cong-ress. The secretary of state shall prepare two lists of the names of the elector::~ elected, and affix the seal of the St:tte to the sa mo. Such lists shall be signed by the governor and secretary. anrl b.v tho\ latter dehvored to the colle"'e of electors, at the hour of their meeting, on such firl<t 

Wednesday of Decem'ter.'' These are the lists that wE're gi>en b.v GovernorGrn- ver ancl the secretary of state to the elector Cronin. The mcthocl of rotnmin~ 

aml canvassing the >otes far member of Con{!l'CSS is pre.'lcribed by section 33, 

p:l{!e 706, of the same compila.tion, which requires county clerks to make copies 

of the ab!ltracts of votes in their counties, and transmit them by mail to the sec- retary of state at the seat of government, whose <luty it is made, "in tho presence 

of the governor, to proceed within thirty d~o.ys after the election, antl son.ner, if 

the returns be all recei.,.ed, to canvass thl3 Yotes given for secretary :md treasurer of state, justices of the supreme court, member of Congress, and clist\·ict attor- neys, and the governor shall grant a certificate of election to the person havin,!! the 

hi,!!hest number of votes for either of such offices, and shall issne ~proclamation 

deel.'l.rin~r the election of such person.'' 

Does the power to can,ass tho vote include the power to reiect votes O!lst in con- t.ra,ention of the Constitution of theU nitPd States, as, for instance. foro. postmaster for elector1 To canvass means (Webster) "to o:s:amine returns of votes, to search or scrutinize, to canvass votes for senators.'' A canva8s is, as per the same au- thority, "ex:'l.mination, close inspection to know the sta.te o~ as a canvas. of >otes." 

To canva. s (Worcester) means "to sift, t~ examine, to scrutinize." .A. cauvass, by the same authority, is "an examination or sifting as of the opinion of others pre,iolts to au election.'' The word comes from the olu French word cannabasser, "to beat or shake, to examine," and necessarily involves cliscussion, as is shown by the other meanin~s of the word, as to canvass a. policy, to canvass a district for votes. If iu 

the State of Louisiana, in which by article 73 of the conRtitntiou, it is providPd 

that "the juclicial power shall be vested in a supreme court, in district courts, in 

parish conrts, in ju8tices of the peace," and in article 94, that 1

' no judicial powers, 

except as committing magistrates in criminal caae.<J, shall be conferred on any offi- cers other tban those mentioned in this title," being the same title which includes 

also article 73, and in which members of returnin:r boards are not mentioned-if 

in Louisiana, in which tho supreme court has dec.ided that the members of there- turnin!! boa rei are officers, (State ex rel. Attorne:v-General, vs. Wharton, 25 Louisiana 

Annual, 2,) it be true, as sta.ted in the letter of Ron. JoB~ SH&RllA-'< and others abo'e 

referred to, that "tho laws of Louisiana show that the cannw~siu~ board is ex- pres l.v required in certain cases to exercise judicial as well as ministerial functions," I do not see how it can be successfull! dauietl that the canvaaeiag offi.curs 

of Oregon have the same power. · Upon tho question ho,vvotes ca.stforan ineligible candidate are to be considered, two opinigns have obtained in the United Sta.tos. Unles~ I am misinformed as to the facts of the Oregon case, Governor Grover's action is not in conflict with eithel' 

of the8e views. • The first of these found its earliest expression from the lips of one of the greatest 

lawyers of the revolutionary periocl, one of the signers of tho Declaration, Chief 

Justice Samuel Chase, of .Maryland, the attempt at whose impeachment when :~o 

Fedt>ral judge famish es such a la.rg13 item in the early judicial histor.v of this coun- try. That Chief Justice Samuel Chase was a lawyer of the first rank, nobody has e>er ventured to deny, but his violent temper exposed him to an attack which nearly cost bim his high judicial position. In the case of Hatcheson vs. 'rilden ami Bordley, (4 Harris (\nd McHenry'sltep., 279,) tho defendn.uts, being judges of the sht'riff's 

election, on the first Mom{ay of October, 17!14, declared Jones aml llall duly elected shoriff>~ of tho county of Kent. although Hatcheson hall mi,re \"Otes tllan eit.her of 

them, on the :n'Oilllll that he was ineligible to election by want of sufficiunt qualitication in real ancl personal estate, as required by law, whereUJ)OD Hatchcson sued 

Tilden and llordley in au action on the case for clamages for refusing to ret.urn him 

a.'! sheriff.clect. Chief Justice Chase, after stating the qna.lification required by 

the constitution, says: "All votes ~iveu for a candidate not having such qu·llifications are to be thrown away and rejected as having no force or operation in law. 

The plain tift' can only be entitled to such votes a:J were ~tven after he received the 

necessary qnalifications, all Yotes in his favor ~revious being illegal and void." Tho 

report says that "the plaintiff hau rcceivec~ the necess 1ry qualifications abont twelve o'clock on the 3U day of the election. and from the state of the polls if he 

hatl received all the votes taken after that timo he could not be elected. Therefore 

t.here was verdict and judgment for tho defen1lants.'' 

Tho subject has been much cousiderell in the State of Indiana. In the case of 

Gulick vs. New, (14 Indiana ll.ep., 93.) decided in Lil60, the court were unanimons, 

but tho importance of the question led to the exprcs ion of two concurring opinions, one by .Tud~e Hanna, the otlter by Jud~e .Perkins. I need not F:t.f to auy western lawyer that Judge Perkins is one of the first lawyers in tho West. The 

points decided are expre setl in the syllabus thus: "'rho governor may determine even againstthe decision of a boar<l of canvassers, whether an applicant is entitled to r eceive a commission or not, whOI'O the objection to hi>~ right to receive it r ests upon the ground that the constitutionnl prohibition is int.erpose(l. If the go...-et·nor 

should ascertain that he has commissioned o. person who is ineligible to the office, 

he may issue another commission to tho person legally entitlecl thereto. Whore a majority of the ballots at an election were for a person not eligible to the offico un- der the constitution, it was held that tho ballots cast for such inelirrible persou were ineffectual, and that the person receiving the grea.test number oflegal 'otes, 

though not a majority of the ballots, wa-s duly elected and entitle1 to the office. 

The mayor of a city, under the general law, has jnristlictJon as a judicial ollicer 

throughout the count.v, and the voters of the county are therefore ellargeable with- notice of his ineligibility under tho constitution to any office other than a judicial one during the term for which he was elected.'' 

In l1oth the opinions in Gulick vs. New tho judges held, as a principle of pnhlio law that where the, ineligibility of a. candid.ate a1ises from his holding or ha.\"in,"' 

hehl a public office, the people within the jurisdiction of such oftice aro presumed 

in law to know-are chargeable with notice of such ineligibility. Mr. Grant, in 

his work on Corporations, page 208, states the rule thus : "A. disq ualifica.tion patent or notorious at once causes the votes given for the candiuate laboring under it to be thrown away; the same would frobably be held to be the case whero tho elect- ors had the means of knowledge o the candidate's <]Ualifications, or the contrary, 

ancl might have ascertained the facts if they had pleased." 

This decision was affirmed in t.he case of Carson vs. McPhetridge, 15 In!lia.ua, 327, aml again in Price vs Baker, 41lndiana., 572, decided in 1R73, :.ho syllabus of 

which is as follows: "Where a m~jority of the ballots at an election are given to a candidate who is not eligible to the office, the ballots so cast are not to be co~mted 

for any purpose. They cannot elect the ineligible candidaro or dA.feat tho election 

of tho opposing candidate b.v showing that)le did not reP.ei'e a majJrity of the ,-otes cast at such election. It follows that the eligible candit.Ja.te will receive an otlico, althou~rh less than a majority of the votes are ~1st for hlm.'' The samo view was strongly presented in the dissentin~opinion of Cbief-Justico Thompson, in tho caae of Tho Commowcalth vs. Cloly, 56 .rennsylvania. Statutes, 270. I quote from pa;;e 

217: "llut I confess my inability to see, if it must. be treated as a preliminaryqnc.~­

tion. why, if the constitutional disqualification of the (lefendant I.Je csta.blishetl, the relator is not entitled to the office. He hacl votes enough to elect him, if tho YOt.es 

for the defendant be regarded as thrown away. This cannot be disputed. It seems to me this position canuot be controverted: that if the votes cast for the dofcndaut 

would not confer the office on him, they do not possesa the faculty or capacity 
220 CONGRESSIONAL RECORD-SEN~t\.TE. DECEl\ffiER 15, 

of ilcprh'ing the plaintiff of his election, having, as already sairl, enough votes to elect him. The m:J:jorit.v of votes o\l •rates oul.v in one djr ·ction. uauwly, to elPrt., and IJ:v rlecting delea.t any competitor·; but without electinrr ~deny that the 

effo·ct is to le~'t a com pet in.!! canrlidate. Tbo thiuJ! is not po siblo. IE it were, a majority of volt's for a tictidou.s candidate or oue nutor·iously ineligible would defeat an oli!!ible can•lidate. The electho franchi o canuot operate m uch a way. If people tfo not vote, generally they con ent that those that do may elect. ~hi~ i 

t11e rule in all popular elections. If, therefore, people do not vote for ranthllates 

who can by law exercise the offices voted .for. it seems to me to follow t.hat they 

tacitly conl'lent that those who do vote for such as are eligible shall elect on equiv- alent pi;nciples. If such au excuse were goou for anythin~. it ought to be good to render effective the votes for the ineli9ible candidate, and thus give him the office 

in spite of the existing disqualification. ' The same principle was upheld in the case of the Commonwealth vs. Read, (2 A.shmeatl, 264,) where the def.endant (Rearl) was held to have been elected treasurer by the county board, having J'eceived but one legal vot.e out of twenty cast . . The other nineteen were <lecided to have been void 

a.nd ineffectual, because they were cast "iva voce, and the single vote by ballot to have controlled the election, that being the mode£rescribe<ll.Jy law. 

Judge Luther S. Cushing, in hi-i work on the aw and Practice of e~slative 

.A.sRemblies, ection 177, states the rule thus: "In England, where a plurality only 

is noce sary to an election and where the votes are gi>en orally, it is also held that 

if tho electors have notice of the disqualification of a candidate, every vote given 

for him afterward wm be thrown away and cousidered as not having been l!iven at all. The effect of this rnle is that not only will the election of a disqnalifie<l 

person be held voi<l, but•if such election takes place after notice.of the disqualification is l!iven to the electors, the candidate having the hil!host number of votes wiJI be elected. This doctiine, however bard it may seem, is founded in the familiar 

principle that ever·y man is bound to know the law with reference to any act which 

he undertakes t.o do, and consequently that when an elector is apprised of the fact ot disqualification of a candidate and notwithstanding ~.'ives his vote for him, the 

elector takes upon himself the risk of losing his vote if his construction of the law turns out to be wrong. "SEc. 178. In this <'Ountry it i.'i equally true that the election of a disqualified 

pel son is.. absolutely void, ana in thuso States where a plurality elects, and where the votes are given orally, as in England, votes given for a. candidate after notice 

of his disqualification ·are thrown away, an<l the candidate having the next highest 

number of votes is elected. ·• 'Rc. 179. In reference to elections by ballot, in which secrecy is the distinguishing feature and in which consequently neither tho returning officers nor the electors 

themselves are supposed to know for whom the votes are given until the result is 

declared, it seems not unreasonable to consider the votes for ineligible canclidates to be thrown away in all cases and the opposing cancli<late elected where tho clt>ctors 

know, or must be presumed to know, the disability, and in all cases where there is no such actual or presumed knowledge to hold the whole proceeding merely void." 

Tbeotheropinion is represented best by the case of The People "s.-Clnte, 50 New 

York, 4511 in which the elaborate opinion of the court by Judge J!'olger is thus 

sum.me<l up in the syllabus: "A minorit.v of the whole body of qualified electors may elect to an office where 

the majority <lecline to vote or where they may vote for one who is inelirrible to the 

office, knowing of the disqualification. Notice of the <lisqualifying fact anrl of its 

legal effect may be given so directly to tho voter as to charge him with actual knowl- e•r~e of the disqnal•fication, or the disqualifying_ fact may be so patentor notorious as that his knowle<lgo of the int>ligibility may oe presume<l as matter of law; but not only the fact which disqualifies but also the rule or enactment of law which 

makes it thus effectual must be brought home so clearly to the knowle<l,!rO or notice 

of the elect{)r as tba.t to give his vote therewith indicates his intent to wa te it, in 

ol'der to ren<ler his vote a nullity. Where a maJority of the electors through i~orance of the law or the fact voted for one ineligible to the office the votes are not nullities; bnt while they fail to elect, the office cannot be given to the qualified person 

having the next hirhest number of votes. The election is a failure, anu a. new election must be han.' 

As John W. Watts was the postmaster of the county seat of one of the most important counties in Oregon, I preRume that the governor and· secretary of state. the 

canvm;sing boarrl of Oregon, found in point of fact, if they adopted the rule of the case of tho People vs. Clutebthat this fact was sufficiently notorious to the republi- can electors of Ore~on to c arge them, or at least eoongli of them with notice of 

the fact of his ineligibility to bring it within this rule so far as the matter of fact i~:~ concerned. So far as the matter of law is concerned a difference is to be observed 

between t.bis case and the case of Clute, growing out of the fact that the lecraJ disqualification of Watts is not only in t.be Constitution of the United State , of which no one can be presumed to be ignorant1 but that it is a. disqualification attached to tho very right which the voter was en,ga,!red in exercising when he ca.at his vote for 

electors of President aml Vice-Presiaent. It may be true where the d.i qualifica- tion exists in a separate statute, as in the case of Clute, that the elector is not presumed to be aware of the existence of the statute. notwithstandin(J' the rule ignorantia leqis excusat neminem; but it cannot be the rule that one who exerci es a. t•ight denved under the ConRtitution of the Unite<l States can be said, to be igno- rant of the limitations of that right. It is a familiar principle in the law-that he 

who takes a. benefit, whether by statute, agreement., or will, takes it cum on re~ 

that is, snbject to all the restrictions attaehetl-and cannot avail himself of the pri>- ilege without bearing the bur<len. Without knowing, therefor(\, whether the gov- ernor of Oregon a<lopte<l the Indiana. rule or the New York rule, I think I am au- tholized t{) presume that if be espoused the New York doctrine bo was ~>atisfied in 

canvassin,!!' the votes that a. number of republican electors votin..,. for Watts more than equal to Watt'i's majority over Cronin knew that he was a. postmast-er, and 

that th11 same number either knew or were bound to know of the constitutional disqualification which attached to the office of Watts. 

In Great Britain the rule is well established that votes cast for an ineligible can- didate must be taken to have been thrown away. The cases are very numerous. The result of them waa state<l by Lord Denman in 1847, in decidin.l! the case of Goslii'g vs. Veley, 7 Adolphus and Ellis, N. 8., 437, in these words: .. 'J he result of the decisions appears to be this: Where the majority of electors vote for a. disqualified person in ignorance of the fact of di qualification, the election 

may be void or voidable, or in the latter case .may be <'.apable of being made good, according t~ the nature of the disqualification. The ~bj ection may require ulterior 

proceedings to be taken before some competent tribunal in orller to make it available; or it may be ~:uch a to place the elected candidate on tho same footing as if 

he never had existed, and the votes for him were a nullity. But in no such ca~e are tho elect{)rs who vote for hitn deprived of their votes if tho fact becomes known and 

is declared while the election is still incomplete. They mav instantly proceed to another nomination and vote for another candidate." (It will be remembered that 

in England elections are all conducted ~iva voce.) "If it be disclosed afterward, 

the party elected may be onsted and the election <leclaroo-void; but the can<lidate 

in the minority will not be deemed ipso facto elected. But where an elector, before 

voting, receives due notice that a particular candidate is disqualified, and yet will 

do nothing but tender his vote fo1· him, h~must be taken voluntarily to abstain from 

exerci ing his franchise, and therefor£>, however strongly he may, in fact, dis ent, 

he must be taken in law to assent to the election of the opposinrr and qualified can: didate, for be will not take the only cour e by which it can be resisted-that is, the 

helping to the election of some other pel' on. Hei pre ent a an elector. Bis pres- ence count.s as snell to make u-p the requisite numbl'r of electors, where a certain 

nU1llber is necessary, but he attends only as an elector to perform the duty which is 

cast. on him by the franchise he enjoys as elector; he can s-peak only in a particu- lar language; be can do only certain act ; an.v other langua~e mean nothing; any 

other act is merely null; his duty i to Msist in makinJ! an election. lf he <lissents 

from the choice of A, who is qualified. he must say so by >otingfor Romoother also <:J.Ualified. He bas no right to employ his franchi e merely in preventinrr an lec- tton~ and RO defeating the object for which he is empowered and bound to attend. Anu this is a wi e and just rulo in the law. It is necessary that an ole tion bonld 

be duly made and at the lawful time; the electoral meetinrr i held for that pnrpo e only; and but for this rule the interest of the public and the purpose of the me ting might both be <lefeated by the per>erseness or the coiTnptiou of electors who may 

seek some unfair advanta~e by postponement. If then, the elector will not oppo e the election of .A. in t.be only legal way, he throws awaY. his vote by directing it 

where it· has no legal force, and in so <loing he voluntal'ily leaves unopposed-i.e., aasent.s to-the voices of the other electors. 

"Where the disqualification dependa on a. fact which may be unknown to t.lte 

elect.or, be is entitled to notice, for without that the inference of a ent could not be 

fairly drawn, nor would the com~equences as to the vote be jn t. But if tb ui - qualification be of a. sort whereof notice is to be presumed, none need·expres Iy be 

given; no one can doubt that if an elector would nominate and voteouly fo-: a wo- man to fill the office of mayor or burgess in Parliament, his >ote would be thrown 

away; there the fact would be notorious, and every m;w wouJ<l be presnmetl to know 

the law upon the fact. 

"It follows from these observations that the true grounrl of the decillion is that 

state<l by Lord Mansfiel<l in the case first cited {Rex vs. Foxcroft, 2 Burr, 1021 ;) 

'Whenever electors are present who do not vote at all they virtually acqul sco in 

the election made b.v those who <lo.' In that ca. e the numerical majodty contentt>d 

them. elves with protesting a~ai'nt the election of him for whom t be miuori ty vowel. 

In the case of Taylor against The Mayor of Ba.tb, 3 Lnders 324 the counsel in 

argument took the distinction between not votin~ at all and voting for a diRqnalified candidate. They admit that eilence might ue held to _givo consent, but that 

voting for the other canclidate was an ex,press ne!-!a.tive; it was the onl.v way, th~y 

said, of voting against ono to vote for th('l other. Bnt tho court overruleu tho !listinction; to vote for a person not qnaliti"d, they saicl, was the same thing as not to vote at all, which it was a<lmitted wuuld have b~en a con~tructive assent." 

Lord <Jampbell held the. same <loctrine in very vi,..,.orons lan gna~e in th case of 

the Queen vs. Coaks, 3 Ellis and Blackburn, 249. uf must say," satd he, "that this 

appears to me to be a very plain case. It is allowed that it duprnd on the ri ~ht of 

Cnnclall t{) act as a councilor on the 9th of November. 1852. If be ha.<l a right so to act at that time, the present defen<lant is not duly electe<l. X ow, as to Cnnclall s ri~ht, who was elect.ed a councilor on the 1st of November, 1831, the case is just the same as if Blake had not been the candidate on that occasion. To be sure, 11 <lid 

stand, but then he was ineligible, and that fact was known to the voters. It is a principle of all election l&w and of good sens that pel'SOns who knowingl,v throw a. vote for an tneligible candidate throw away tht~ir votes· just as much as if they voted for the man in the moon." 

In-another report of the same case, namely, 1 Juri t, part 1. page :378, Lord Camp- bell's language is reportefl thus: "This is clear; it is allowed that it depencls upon 

whether Cundall ha<l a right to act as citv councilor of Norwich on tho 9th of November. If he had aright so to act, the present <lefenrlant was not rluly Iect ll 

mayor, and is a usw-per, and the qtw waiTanto properly issued, Cnntlall was lected a city councilor on the 4th of November 185l; ttis the ame as if Blakehaclnot been a can<lidate, becanse he W"l.S ineligible, aml thatfact wa known to the electorR, and 

if the voters know that a candi<late is ineligible, they throw away their votes whon 

they vote for him. They <lo not vote. "This is ~ood corporation law, ~;ood par!iamentary law, and ~ood sense, anrl there 

is nothing m statute 6 and 7( William IV, chapter 76, to alter H. Then make's votes being disregarded, Cundall bad the greatest number of votes, and br.in:: !I uly 

elected, he ought to have b~en returned as one of the city councilors." The late. t discussion of this subject in England is found in the ca. e of Drinkwater vs D kin, 

Law Reports, 9 Common Pleas, 6~6. • The same principle has been decide<l in Ireland in theca e of Tre:nch vs. Nolan, 

Irish Rep., 6 Comll).on La.w, 4fi4, where the court of common pleas held that "votes 

given to a. candiclate who is disqualifie<l, after notice of that disqnaliticat.ion had 

been given, are thrown a.way.'' • The same rule was followed ill 1~75, in tho celebrated ca eof the Tipperary election, Irish Rep., 9CommonL'\w, 217. whore John 

Mitchel and Stephen Moore were the only canditlateR for member of Parliament in 

the county of Tipperary. Mitchel received 3,114votesand Moore 746. John Mitch l 

having been convicted in 1848 of treason-felony and sentenced to transportation for 

fourteen years, having escaped and been naturalized as a citizen of the United 

States, it was held that he was disqualified to be elected a. member of the IIonse of 

Commons, and that notice of his disqualification having been br·ought home tn the 

electors who voted for him, their votes were thrown away, and the rh•al candidate, 

though numerically in the minority, was entitled to the seat. Questions similar to those under discussion have often come before le¢!!lative 

botTies and have been varidusly deci<led. In the opinion of Jn<lge Fol~er in tb oca:~e 

of The People vs. Clute, in the opinion of the majority of the court by Jndg troug 

and in the dissenting opinion by Chief.Jnstice Thorup on in the case of the Con1-

mouwealth vs. Clnly, the opinions of legislative committees and le!!i lativo uoclics are not considered as entitled to much reRpect, It wa.'l clainletl in the argnment of 

the case of The People vs. Clute, by Mr. Paige, that a majority of the opiniow:1 of 

this h-ind ars in favor of the rule that votes ca.st for an ineli~ribla candidat are to be treate<l as vot-es thrown away. I conceive that much depends in such ca. e nron the character of the office, as. well as of the language of disabilit.v. For instanr.e, one entertaining the views that I do may well bold that votes cast for an ineli,!{i ble 

candidat:e for a representative office at least have the effect of preventing an election, for the reason that the office being in its character representative, the officer bein~ during his whole term the spokesman or repr sentative of tbe people, the 

candi<lat.e receiving the minority can ne1'er fulfill the function, and, therefore, can never be declared elected. Such is not the English <loctrine, for they ar in the 

familiar habit of seating members in Parliament who received the minority vot.e where the majority w~ cast for a disqualified candiclate, but it eems to me more con onant to the spirit of .American institutions, and that neith r the view exprr..'lsed 

by the Indiana. snrreme court an<l b.v Chief-Justice:\ Chase and Thompson, nor that of the court o appeals of New York, onaht to apply to an election tfl a rep- re enta.tive body, as the Senate and House of Repr entative., on the simple principle that a. minority can never elect a. representati>e of the whole people. 

But a. presidential elector is not a rep•·esentatiYe. On the contrary; to treat him as such is a violation of the letter of the Constitution as well as of its spirit ami of 

the known '[>Urpose of its founders. The ineli,!!'Lbility of a Fedeml office-holcler to the office of elect~r must be determined in view of the character of that ollice as it was ~derstood by the framers of the Constitution, nnd not uy any change of 

opinion in regard to the character of that office which ba.s since occurred. .Again, the languarre of disqualification varies in VaJ'ions ca~:~es . A Federal officer is not eligible to 'be "appointed." The fourteenth amenclment disqualifies tho e who are within its provisions, not from appointment, but, on the contrary, uses these 

words: 

"No person shall be a. Senator or Representative in Con,!!l'es , or elector of Pre ident and Vice-President, or bold any office, civil or military, under the United 

States, or under anv 8ta.te, who, having previou ly taken an oath, as a member of 

Congre , or as an officer of tbu United State , or as a member of any Stat L ~islature, or as an executive or judicial officer of any State, to support the ConRtitntion of the United States, shall have engaged in insurrection or rebellion against 
·. 

1876. CONGRESSIONAL REOOR.D-SENATE. 221 

the same, or given aid or comfort to the enemies thereof, but Congress may, by a. voto of two-thlrds of each House, remove such disability." 

Here the disqualification attache.~ not t.o the appointment and relates not to the 

<late of the appointment, lmt to the act of hnlding the office. and thus to tho date of 

performing it~ dutirs. So that a person su.bject to the di~qualificatious of the fourteenth aml'ndment ma.v well be apnointerl, and if eligibility be conferred on him 

l1ofore the time for perform:J.nce of its duties, may ent.er upon such office. Therefore vot.es for a person thus rlisqualified, as in the case of Vance in the United States 

Senate, and in the case of General Frost in Missouri, cannot be treated as nnU aml 

void, but at the most create a. vacancy if the diAqualificMiou be not removed before 

the time for the yerlormance of duty in the office has arrived. 

I will take the trouble of calling your attention to another question cognate to t.he 

above. Su.ppose votes given for Watts were not to be rejected a.~ null ancl void, anu tho doctrine of the Indiana and Maryland cases do not apply ; ami suppose that these votes cannot be r~jected under the nile established by tho case of Tho People against 

Clnto, then a third question is· presented, W.l.S there a. vacancy in the office of elector, 

aJJd was there a failure to elect which can be treated a.<1 a vacancy 1 

It seems to me perfectly clear that either Cronin was elected or there was no election and no vacancy which could be filled by vote of the other electors, and that 

the samo is tme of the election of Sollace in Vermont .. and in Mveral other ca.~es of 

the election of Federal office-holders which hM-e occurred. I come to this conclusion by a consideration of the Revised Statutes of the United States. On general 

principles, to make a vacancy. it reCJuires that th~re should have been an office to which some one bas been elected. It cannot be s:ml, I suggest, thou,!!;h I have not examined the que.'ltion fully, that if the peoplo fail at the first eleclion to an office to choose any one, there is, in any proper senao of the word. a vacancy in that office. 

There has been simply a failure to fill the office. But whether this be so or not, 

that the omission to elect an elector by the people does not constitute a vacancy is 

made perfectly clear by a C?mparil!.o~ of sections 133 and 134 of the Revised Statutes 

of the United States. Section 133Is m these words: 

"Each State may by law provide for t.he filling of any vacancies which may occur in its cotle~e of elept.ors, when such colle~e meets to give its electoral vote." 

Section 134 provides that "whenever any State bas held an election for the purpoRe of cboosmg electors, and has failed to make actoice on the day prescribed by 

law, the electors may be appointed on a subsequent day in such manner as the Legislature of such Stat,e may direct." .These seutions treat vacancies as being some- thing quite difTtJrent from failure to make a choice on the day prescribed by law. 

In the cases of Watts anrl Sollace. either their highest competitors were chosen or there was a failure to make a choice on the day prescribed by law. If thero was a failure to mako a choico on the day prescribed by law there is no doubt that, 

under section 134, the number of electors not chosen might be appointed on a subsequent day in such manner as the Le~islatnre of such State might direct. 

But as this is a distinct provision from- that for fillin!t of vacancie~ in section 133, 

this appointment cannot be made under a pro"ision of law adopted by the Legisla. ture for filling vacancies, for the fillin;" of vacancies is one thing and failure to elect is auotber, under these statutes; nud if the Legislatnyes 9f Oregon and Ver- mont bavo never· provided (they certainly have not in Oregon, whatever may be the CU86 in Vermont-as to which I am not 1nformed) for the case of failure to make a 

choice on the day pre cribed by law, then certainly, if Cronin's and Sollace's high- e>ot competitors were not tluly elected, at least the vote cast under pTet.ense of tilling the vacancy cannot be counted. In Oregon this view is cOJlfirmetl by the provi ions of the Oregon statutes relative to the filling of vacancies. They are in 

these worcls, (General Laws, chapter 45, section 2, pa.!!e 849:) •• Tho electors of President and Vice-President shall convene at the seat of gov- ernmenton the first Wednesday of December next after their election, at the bou.r 

of twelve of the clock at noon of that day; and if there shall be any vacancy in the 

office of an elector, occa ioned by death, refusal to act, neglect to att.end, or otherwise, the electors present shall imniediatel.vproceed t-o fill, by viva voce and plurality of votes, such vacancy in the electoral college; and when all the electors shall 

appear and the \acancies, if any, shall have been filled," as aboveptovided, such 

electors shall proceed to perlorm the duties required of them by the Constitu.tion 

anrllawsof the United States." 

Had the Lep,.latnre of Ore:ron intended to authorize any vacancy, however 

ca.m;ed, to be olled by the electors present, they would not have used the words, 

"If there shall be any vacancy in the office of an elector, occasioned by death, re- fu alto ad, neglect to attend, or otherwise." These words, "occa.'lioned by death, 

refusal to act, neglect to attend or otherwise," are entirely superfluous upon this 

theory. For the sentence would then have read: " If there shall bo any vacancy in 

the office of an elector, the electors present shall immedia.tel.v proceed to fill by 

'!!iva voce plurality of votes sucl.1 vacancy in the elcct.oral c.ollege." The use of 

these words, "occasioned by death, refusal to act, neglect to attend, or otherwise," 

il1flicates that there are cases of vacancy which the electors may not fill, and 

this view is strengthened by the character of the vacancies thus described, the 

three named-death, refusal to act, anti neglect to attend-bein:r all the result of events occurrin)! after the election. The words "or otherwise," upon canons of 

interpretation well known to every lawyer, cannot enlarge the preceuing words so as to make them apply to every case of vacancy, but only refer to other like cases depending upon conditions similar to tlle enumeratec.l. cases. The maxim 

applicable is noscitur a sociis. So a. statute treating of "deans. prebendaries, pat·- sons, vicars, an«l others hat"ing spiritual promotion" is held not to ortend to bishops, though they have spiritual promotion, deans bein.!!: the highest persons named, 

and bishops beiug of a still hiJZber order. (1 Blackstone'~> Comm., 8.) In the Ohio 

mechanics' lilm law. a similar case of construction is fouiHl. The law provide that a subcontractor may serve on the owner an attested account of any sum due him 

from the contractor, whicl.t the owner is required t.o deduct and pa_y to tho suhcon tractor out of his subsequently accruing indebtedness to the contractor, and sec- tion 6, 1 S. & C., 83,J, provides that "if, by collusion or otherwise, the owner of any 

building E-rected by contract as aforesaid shall pay to his contractor imy money 

in advance of the sum due on said contract," be shall be liable to the subcontractor 

in the same m:tDner as if no such payment had been made. 

During the thirty rears that I have been a member of the Ohio bar I have known 

it cont.ended many t1mes, but always unsuccessfully, that these words "or otherwise" bad the effect to include the cas.es of advance payments, rendering the owner liable, so that he might be charged by the subcontractor in any case of advance 

pasment; but the decisions have l>een uniformly to the contrary. It has always 

been held that the words" or otherwise" referrecl to the contextual word" collusion," and meant collusion or other like or ueceitful or fraudulent advance paym6Jlt., and tl1at for the reason that to read it as claimed is t.o read the statutes as if 

the words "by collusion or otherwise" were eliminated from it. So, too, the con- struction propo ed will make the Oregon statute read as if the words •· or otherwise" had never been introduced into it. 

Allow me in conclusion, although not called for by your request, to express the 

bope that by adopting the principles of civil-sen·ice reform, by making thtJ teuu.re of all Federal ofticerA dependent on good behavior and not on political opinion, by 

providing tba.t no officer shall be dismissed except for cause, both parties in our 

country may remove from our presidential elections that which makes them so dangerous, namely, the fact that a political change in the Presidency is followed by what the New York Nation properly calls the most cruel, undeserved, and exces3ive 

pnnillhment. to thou Rands of families, namely, wit.hdrawal of their means of support, often as now in the hari.lest of times. ,. Yours, respectfully, 

GEO. HO.A.DLY. 

To the EDITOR OF THE COMMERCLU.. 

MESSAGE FRmti THE HOUSE. 

A message from the Ho11se of Representatives, by Mr. GEORGE U. 

ADA~1s, its Clerk, announceu that. t-he House had agreed to tlle third 

amendment of the Senate to the bill (H. R. No. 4121) to provirle for 

the expenses of certain special committees ; · and that. the Honse had 

agreed to the first and second amendments of the Senate to the said 

bill with amendments; in which it requested the coucurrence of the 

Senate. 

The message also announced that the House bad passed the fo1lowing bills; in 'ivhich it requested tl!e concurrence of the Senate: 

A bill (H. R. No. 4204) to remove the political disabilities of ·will- iam Sharp, of Norfolk, Virginia; and 

A bill (H. R. No. 4149) to remove the political disabilities of Lloyd 

J. Beall, of Virginia. 

COM..."IITTEE ON COUNTING THE ELECTORAL VOTES. 

Mr. ED~1UNDS. I ask leave to offer a resolution wllich simply provides for the reference of the message of the House of Representatives 

n.IJout tbe electoral vote, which I ask may lie over until Monday, and 

I offer it merely-! do not suppose it is at all necessary under the ruleto guard against the possibility of a single objection carrying the 

matter away from our consideration on Monday. That is my only object in offering the resolution; and the resolution of the House, if the 

Chair will lay it before us, I will move to have laid on the table. 

The PRESIDENT pro tentpore. The Chair will lay before the Senate 

the resolution of the Rouse of Representatives: ·· The Chief Clerk read a.s follows: 

Whereas there are differences of opinion as to t-he proper mode of counting the 

elect.oral votes for President and Vice-Presitleut., anti as to the manner of determining questions that ma.v arise as to the legality an1l validity of remrn.'i made of t~uch 

votes by the several States ; And whereas it is of the utmost importance t.hat all diffdrences of opinion an«,lall 

donbt and uncertainty upon these questions sJ1ould be removed. to the enc.l. there- fore that the votes may be counte«l aml tile redUlt declared by a tribuna-l WbOl:!O ·au· tbol'ity none can question and whose decision all will accept as final; Therefore, Re.~olved, Tbat a committee of seven members of this House be appointed by the 

Speaker, to act iu conjunction with an.y similar committee that may b~ appomted 

by the S.-nate, to prepare and report wttbout delay such a measure, either legislative or constitutional, as may in their judgment be bestcalcnlated to accomplish thu 

desiTeu entl, that said commj ttee have leave to report at auy time, a.ud that the Clerk 

of this House inform the Senate of tbt' adoption of this resolution. 

.Mr. ED~IUNDS. I move that the rt}solution be laid on the table 

untill\lonrlay. 

The PRESIDENT pro tempore. It will lie on the table, if there be ·no objection; and printed f 

Mr. EDMUNDS. Yes, sir. 

The PRESIDENT pro tempore. And printed. The resolution which 

the Senator .from Vermont 11ow offers will be reported. 

The Secretary read as follows: 

. Resolved, Thatthemessageof tbeHouseof Representatives on thesubjectoftlle 

presidential election be ro1 erred to a select committee of some se\·en &mat.o1·s, with 

powtll' to prepare and report, without unnecessary delay, such a measut·e, either of a legislative or other character, as may, in their judgment, be best calculated w ac- complish tho lawful countin.!{ of the elect.oral votes and best dispo. ition of all - questions connected therewith, and the due declaration .,f the result ; aml l bat said 

commit teo have power· to confer and act with the coutmittee of thellouse o.f Rep- ro. entatives namecl in said messa_ge, and to repol't by bill or otherwise. 

Ordered, That the SecrtJtary notify the Honse of Representatives hereof. 

Mr. ED.\1UNDS. I ask that it lie over until Monday. 

The PRESiDENT pro tempore. The resolution will lie over anti be 

printed. EXPE~SES OF C0:\1~ITIEES. 

The Senate proceeded to consider the amendments of the Hoose of 

Representatives to the ameuuments of tl.Je S(>na,te to tht} bill (II. R. No. 41~4) to provide for the expenses of certain special committee~; and 

On motion by .Mr. WINDO~I, 

Rer;olved, That the Senate disagree to the amendments of the HouAe to the amend· ments of the Senate to the said llil~ and ask a conference on rho disagreting votes of tile two Houses thereon. · 

By unanimous consent, it WM 

Ordered, Tbat the conferees on the part of the Senate be appoint-ed by the President pro tern pore. 

Mr. Wr..--woM, Mr. LOGAN, and Mr. DAVIS were appointed the con- ferees. · 

HOUSE BILLS REFERRED. 

The following bills from the House of Representatives were sever· ally reail twice by their titles and referred as indicated below: 

The bill (H. R. No. 4204) to remove the political disauilities of William Sharp, of Norfolk, Virginia-to the Uommittee on the Jmliciary. 

The bill (H. R. No. 1874) granting a new register to the schooner 

Carteret-to the Comn:Uttee ou Commerce. 

The bill (H. R. No. 3256) for the relief of John F. Sutherlin & 

Broth6r, of Park County, lndia,nar-to the Committee on Claims. 

The llill (H. R. No. 2278) to change the name of the port of eutry of 

the district of Teche, iu Louisiana, from Brru~hearto Morgan City-to the Committee on Commerce. 

The bill (H. R. No. 414!J) to remove the political disabilities of 

Lloyd J. Beall, of Virginia-to the Committee on the Judiciary. 

The following joint resolutions from the House of Representatives 

wete rseverally read twice by their titles and referred to the Committee on Foreign Relatwus: 

A joint resolution (H. R. No.171) in reference to the congratulations 

from the republic of Pretoria, South Africa; and · 
222 CONGRESSIONAL RECORD-SENATE. DECEMBER 15, 

A. joint resolution (H. R. No. 172) relating to congratulations from 

the Argentine Republic. 

ELECTORAL VOTE OF OREGON. 

The Senate resumed the consideration of the resolution directing an inquiry as to the eligibility of J. W. Watts M a presidential elector 

in Oregon anu the circumstances connected with the appointment of 

electors in that State. 

l\lr. W ALLA.CE. Mr. President, I rise . with no intention to preiudge tue questions which are involved in this resolution, but to en- deavor to uresent to the Senate some of the conclusion!' toward which 

my own mind is tending in regard to this important and interesting 

question. A.t the outset it is well and proper, it seems to me, that we houJd be careful in thejudgmentwe pass upon the governorof a St-ate within the performance of a grave, high, constitutional duty. It 

is ju t to remember the obligations under which he acts; it is just to 

remember that. he is bound by an oath; and we are bound to believe 

that be acted con cientiously. No accusation of wrong, no charge of 

willf11l misbehavior should, it seems to me, be sustained by us against a man clothed with lligh official functions, vested by the people of his 

State with the executive authority thereof and ~hosen by its people 

t.o a eat in this Hall unless plenary proof, conclnsi ve eYidence tllereof, 

be furnished to us by those who make the charge. The presumptions are in his favor, a.nd it is our duty to believe that he acted conscientiou ·ly in the performance of his functious until the cont.rary plainly 

appears. 

Under what obligations bas he acted f A.s governor of the State of 

Ore(l'on he has acted under the obligation of an oath to support the 

Con° titution of the United States which it, by its own terms, impo e . That instrument in clause 2 of article 6 provides thatThis Constitution, and the laws of the United States which shall be made in pur. suance thereof and all treaties made, or which shall be made, lmder the authority of the Un. itell States, shall be the supreme Ia.w of the land; and the jutlges in every 

Stato shall be bouna thereby, anything in the constitution or laws of any State to 

the contrary notwitltstanding. 

In recording this oath he accepts the solemn obligation that so far as his offidal duties go not the laws of Ore~on nor Oregon:s constitution, out the Constituti.on of the United States, shall be to him the 

supreme law. What is the provift1ion of this supremo law in regard 

to this question f It is found in clause 2 of article 2, thus: 

Each State shall appoint, in such manner as the Legislature thereof may direct, a nnml.l& of electors, equal to the whole number of Senators and Representatives to which the State may be entitled in the Congress; but no Senator, or Representative, or person holding an ojfice of t1'fUt or profit under the United States, shall be appointed an clutor. 

This is the supreme law. It is not.a statute law nor the constitution of Oregon, but it is the Constitution of the United States that is 

made the supreme law. The power of the State to appoint its elect- ors is fully given by this clause, but accompanying the power follows 

the inhibitiOn "no elector shall be appointed who holds an office of 

trust or profit under the United States." We learn as au undisputed fact that the State of Oregon has attempted to appoint under 

its own laws, maue in pursuance of the Constitution and lawa of 

the United States, the nnmb~r of electors to which she is entitled, 

bnt she violates the inhibition enjoined upon her by selecting as one of her electors a person who enjoys an office of trust anu profit 

under the Uniteu States. This is the undisputed comlition of the 

question as now presented. Or it may be stated thus: The S~ate bas 

appoint.ed its electors under. its own laws, but in doing so it has violated the supreme law. 

The law of the State and the act of Oongress concur in tl1ia, that 

they give to the executive of the State exclusive power to certify the 

appointment of the electors. I read from the Revised Statutes of the 

Uuited States on that subject: 

SEC. 13fi. 'It shall be the duty of the executive of each State to cause three list of 

the names {)fthe electors of such State to be made and hertitied, anu to be delivered 

to the electors on or before the day on which they are required, by the preceding 

section, to meet. 

The law of the State as quoted by the Senator from Oregon gives 

the governor of the State the power to canvass and to certify the 

vote, and thus it and the law of the United S~ates concur in giving 

to the governor the exclusive power to certif.v the appointment of 

the electors. The governor, thus vested with the power, recognized 

by the Constitution and the laws of the United States and of Oregon 

as the power to canvass and to certify, performs his duty. He can- vas s the vote, he certifies the list-s, and in so doing he obeys the 

supreme law and refuses to certify for the disqualified official. 

The responsibility is cast upon the governor, he is called to the performance of a plain duty, and in its performance be recognizes the 

binding obligation of his oath to obey the paramount law. The ordinary mind can gra~p the whole of this proposition. There ·are no 

iechnical rules, no fine-drawn distinctions, needed in judging of what s the duty of a conscientious man under such circumstances. On the one baud is thep1aiuletterofthe snpreme law and the oath of the exec- ntive, on the other a candidate plainly ineligible with a majority of 

votes. He obeys the former and holding the votes for the ineligible candiuate to be void certifie for the minority candidate. If this be an error he has erred in obedience to his desire to obey his oath and 

to giv representation to his State. 

Who complains T A. postmaster sworn to obey the Constitution of 

the Uniteu States, who was bound to know that he was ineligible. 

The governor says, ic explanation of the manner of the performance 

of his d~ty, that law antl fact concur; that the oa.th anu the Con tit.ution go band in hand in making the man who s ems to have a ma- jority ineligible. Is it not just and proper to take hi statement upon 

this subject T The legal question then is an un ettled qnest.ion. Is 

it not as plain a duty-on the part of the governor to obey lli oath to 

support the Constitution of the United States as it is to give a cer- tificate to an elector in violation of L>oth the Const-itution of the UDitecl 

States and his oath 7 I do not propose now to cliscnss tlle maiu question, but simply to ask, is there any case decided in tho Uniteu SLates 

courts, either on original or appellate jurisdiction, which holds the 

doctrine contended for adversely to the governor. 

Mr. MITCHELL. Will the Senator yield to me a moment! 

Mr. W .ALL.ACE. Yes, sir. 

Mr. MITCHELL. I desire to a k the Senator from Pennsylvania-

! take it for granted, of course, that he has examined the law on this 

questjon and tlle fact -wbether,in his judgment as a law~~e r, it W:l8 

the duty of the governor of t.he State of Oregon to atljutlic:tte upon 

the question as to the eligibility or non-eligibility1of Mr. Watts a-s an elector f 

Mr. WALLACE. It is as plainly his duty to recognize the binding 

force and effect of the supreme law which overrides the law ant! con- stitution of Oregon as it is to give a certificate in violation of both. 

Mr. MITCHELL. That is not au answer to my question. I want 

to know of the Senator from Pen,nsylvania as· a lawyer, whether, in 

his judgment, under the law, it was the duty of the governor of Oregon to a(ljudicate and pass upon the question as to the eligibility or non-eligibility of Mr Watts as an elector. 

Mr. \V A.LLACE. A.s executive of the State he was bound to take 

notice of the fact that there W:l8 au ineligible canditlate anu refuse 

him his certificate. The agency of the governor on tllis subject has, as the Senator will see when he comes to hear what follows in my ar-

~ument, is perhaps that of an agency of the General Government actmg in behalf o:f his State. His duties may be purely ministerial, but 

there is anot.ber tribunal that will correct him, if he errs therein. I a k the question, is there any authority settling this question either on appellate or origiual jurisuiction decided..._by any of the courts of 

the United States f I find none. This is a question of United States 

law, not of State law; I need scarcely say to the Senate that when a State court has settled a question even alfecting one of its own citi- zens that involves a construction of the Federal Constitution that 

that construction by the State court is not binding upon the courts of 

the United States. 

Mr. MITCHELL. I inquire of the Senator from Pennsylvania if 

there hM ever been any construction by the supreme court of tlle State 

of Oregon upon the Federal Constitution on this question or on the ~wsf - Mr. W AtLACE. I do not kuow anything about that, and it is not · nece ary to the line of argument which I propose to follow that I 

should know. The proposition I make is that this is a que tion of 

United States law and not of State law. that the inhibition in the 

Cvn titntion of the United States is broad and full. It in ub tance 

is, are the votes void f Who bas the right to settle tha,t qnestiou f 

What rule of construction applies 1 Here is a provision of the Federal Constitution penal in its character to be construed. Doe the rule 

of the common law apply f It is but a short time siuce we heard prote ·ts from the Senator from Indiana against the applic::ttiou of the common law to a provision of the Federal Constitution somewhat 

penal in character. Is the rule that of State con trnction, or i ·it that 

of Federal interpretation f .My mind leads me to the conclusion that 

this matter is to be settled by J<,ederal interpretation, auu not b,v the 

constructions of the State courts. I reach that conclu ion hecause I 

believe that if this question were raised by quo toa1·ranto, for in tance, 

it would find its ultimate tribunal in the Supreme Conrt of the United 

States. If there were a contest between two men as to who should 

fill the office of elector, certainly it could not be ettled by the_law of 

Oregon ; it would gravitate, necessarily, to the Supreme Court f the 

United States, and there be settled. Next, the inhibitions here con- tained are upon an agency of the State, but that agency is a part of 

the machinery of the Federal Government itself, without which it 

cannot exist; and, as a. necessary consequence, it follows that the 

power of the agencies, the coru·ts or the· political tribunals of the Federal Government, to discuss, to judge, and to settle any legal question 

arising therefrom, must remain m full force. If the State alone could 

control this subject, they could nullify the p~in terms of the Federal 

Constitution in this regard. 

Again, the great end to be reached is the culmination of the popular will in the counting of the vote. There is power given here to some agency of the Federal Government to reach that end. The words 

of the twelfth article are : 

The President of the Sena.re shall, in pre11ence of the Senate and IIouse of Rep. resentatives, open all the certificates, and the votes shall then be counted. 

The votes shall then be counted. 

How f If that power be given, the means necessary to the attainment of the end inevitably and necessarily follow; they follow by 

necessary implication. Just M under the clause" each House shall 

be the judge of the elections, returns, and qualifications of its own members," the means at~e implied to summon witnes es, to examine 

elections, to judge of eligibility, and to provide the machinery that 

surrounds a contested-election case under this provision; so under the 
1876. CONGRESSIONAL RECORD-SENATE. 223 . 

power here expressly given to count the vote there is necessari1y implied the means and the power to learn whether it is the vote of that 

State, and to learn whether it be cast by those who are not prohib- . itcd by Federal law from so doing. ' · The Seuator from Indiana takes up the cases to convict ·the governor, and he cites them se1·iatim. As I have already said, no case con- strues this provision of the Federal Constitutiou. No case is cited 

fi·om Federal authority. The People vs. Clute, in New York, was a case of ineligibility arising under State law. The case of the Commonwealth 1:s. Cluly, in Pennsylvania, was a question of the ineli~ibJlity of a sheriff under the State constitution. The question in tne ca e of Crawford vs. Dunbat', the fecent California case, was one arising under the constitution of the State of California. Tlle case from 12 Gem·gia was a case of non-residence. The case from Kentucky was one arising under the constitution of that State, and the case in 14 Wiscon!Sin was a question of naturalization mHler the act 

of Congress. · These are the principal cases cited by Senators in proof of their position. I am therefore justified in my assertion that there is no case cit d and no doctrine implied from a.uy of them that can control, 

direct, or settle the interpretation of the Federal Constitution, but 

that it i.s to be settled hereafter by some tribunal acting as an agency 

of the Federal Government and in an enlightened view of the whole 

subject. I am sustained in this view by the report of Messrs. Grundy, 

Clay, and Wright in 1837. 

Mr. MITCHELL. Will the Senator yield a moment 1 · Mr. WALLACE. Will the Senator from Oregon permit me to go 

through T I will answer anything he has to say at the end of my ar- gument. This report made in 1837 came from three men no less 

famous than Felix Grundy, Henry Clay, and Silas Wright. In that 

report the committee say: 

The committee are of opinion that the second !lection of the second article of the 

Constitution, which declares that "no Senator or Rtlprellentative, or person holdin* an office of trust or profit untler the United States, shall IJe appointed an elector, ou o-ht to be carried in its whole spiriL into rigid execution in order to prevent offi· 

cm':S of the ~neral Government from bringing their official power to influence t.he 

elections of President and Vice-Preside:...t of .the United States. 

They t.hus bold that this provision of the Constitution should be 

carried into rigid execution; and are we to hold that the rules of the common law, or the rule of construction by Stat.e courts of their own constitution, are to take away from the Federal courts-to take away 

from this tribunal if it be the one vested with power to judge on this subject-the right to determine and to settle this question f I 

cannot agree to such a conclusion. I want to hear the fa-cts, to determine our jurisdiction, to grasp thisimportantquestion in the fulllight 

of the grave results that now impend, and so advised to calmly jndge. 

I havo stated that the law is unsettled, and in such a condition of 

things, with this provision of the l!,ederal Constitution unconstrued, 

is it not jnst and wise and proper to· gi ye at least a. hearing to the 

other side before animadversions and attacks are made upon the gov- ernor and those who act with him f 

But another question in this case presents itself to my mind. I 

ma.ke tlle suggestion fo.r what it is worth, as I have reached no final 

conclu ion on the subject, but I am inclined to believe that thore are Lut two electors lawfully appointed by the State of Oregon. The Revi ed Statutes fix the time of appointment by the State. This is 

found in section 131. Section 13:l provides as follows: 

Eaoh State may, by law, provide for the filling of any va.ca.ncies which may occur in its college of electors when such college meets to give its electoral vote. 

What, now, is the statute of Oregon f The Senator from Oregon 

reads it aurl, I believe, reads it correct.ly: 

The electot·s of Prt>.sident and Vice-President shall convene at the seat of govern- ment on the first Wednesday of December next after their election, at the hour of t welve of the clock at noon of that day, and if there shall be any vacancy in the 

office of an elector, occasioned by death, refusal to act., nPglect to attend. or other- wise, the electors present sLall immediately proceed t.o fill, by viv(;£ voce ancl plur·ality of votes, such yacancy in the electoml col1ege, and when a.ll the elootors ball 

appear, or the vacancie , if any, shall have been lilled as above provided, uch elect- or. shall proceed to perfonn the duties required of them by the Constitutio11 and lawa 

of the United States. 

So that this provision of the act of Congress, section 133, is carried 

into full fvrce by the provisions of the Oregon statute; and this brings us to the question: What is a vacaucyf It is a place unfilled. This 

is the common interpretation of it as applied to an office; a place un- filled. Before Q. vacancy can happen in any office it must once have 

been :filled. That is the ·common-sene.e meaning, the ordinary interpretation of the word. To assert that a vacancy in an office has 

been filled implies that it previously had an incumbent. 

Mr. ED:\IUNDS. May I ask the Senator from Pennsylvania whether tb ~t was the interpretation put upon the word Hvacancy" by Mr. 

Buchanan, and by his law advisers, and by his democratic predecessors in filling up a.ppointments created by law for the first time, after 

the Senate had adjourned, that had never been filled in the world t 

Mr. WALLACE. It is not necessary to go into any political question at this time. 

Mr. EDMUNDS . . It is not a political question. I am looking after 

great precedents and asking my friend for information. 

Mr. WALLACE. I will glVe the Senator the authorities upon which 

I rely. 

Mr. EDMUNDS. Bnt will not the Senator answer my question f 

Mr. WALLACE. The ~enator, perhaps, has the advantage of me 

in his as8ertion of that being a. precedent. I do not know whether it was or was not, but, certainly, no conrt in the land has e tablisuetl 

any.t:mch doctrine; certainly, there has been no such authority given here. · 

Mr. ED:MUNDS. Is the Senator quite sure of that 1 

Mr. WALLACE. I believe t.bat I am ; I ~o not know. The Senator is at liberty to correct me if I err. I quote now from the cases cited in Brightly: 

There can be no appointment to fill a vacancy until t-he office has once been full. 

(Ex parte Dodd, 6 l!:nglish, l!'i2.) In that case Johnson. U . . T., said: •· We con. ider it 

pmf ectlv clea.r that the vacancirs contemplate•! necessarily presupposed that rh& 

offices had been once filled, aml that the provision for tilling those vacancies was solely 

designed to embrace the unexpired portion of the term that might remain atter the 

happening of such vacancy." And see Johnston 118. Wilson, 2 N. H., 202. This 

question has been thl' subJect of discussion in the Senate of the United State , and the doctl'ine of Ex pat'te Dotlrl is that held by them. In the yelu 1814. Pre itlftnt. Matlison ~rant.e d commissions to minist.er-s to negotiat.e the treaty of Ghent, in th& r eces of the Senate. The principle act d upon m this case, howEn·e , was no~ ac- quiesc6(1 in, but protested a.gainst, by the Sunate, at their succeeding Re. sion; and on a snbsequent occasion. (20th .A.pl'il. 18Z'2,) during the pl'wlencv of the bill fo r an appropt'i.ation to defra.y the expense of mis~ions to the South American states, it seemed distinctly underntood to be the sen e of the Senate, tha~ it is onl.v in ntlictJs 

that become vacant dming the recess the PrcRident is authonzerl to exer·<'L'3e the right of appointing to office, and that in original vacaucieR. where ther e has not been an incumbent of the office, snch a. powet·, under the Uonstitution, does not at- tach to the Executive. .And in a report of the committee of the Senate, m:ule ou the 25th April, 1822, it is declared that the words "all vacancies that ma_y happen 

during the recess of theSeuate" mean vacancies occurring from death, I't'Rignation, 

promotion, or removaL-Brightly's Leading Oases 01' ElectUm.s, pages ti77, 67 . 

Judge Story takes the same view an<l lays the law down in the same way, (section 1559.) Bnt this is not all. What is a va.caucy in 

office that may be filled is defined by the statutes of Oregon thus : 

Everv office shah become vacant on the happening of either of the following events 'before the expiration of the term of such office 

1. The death of the incumbent; 

2. His resignation; 

:l. His removal ; 4. His ceasing to be a.n inhabitant of the district, county, town or Tillage, fcrr 

which he shall have been eleeted or appointed, or within which the duties of his 

office are required to be discharged; . . 5. His conviction of any infamous crime, or of any uffen.se involvin~ a violation 

of bis oath; 

6. His refusal or neglect to take his oath of office, or to give or renew his official 

bond, or to deposit !luch oath .or bond within the time prescribed b~· law ; 7. The decision of a competent tribunal declaring vohl hi..'l election or appoint- ment.7Gtneral Laws of Oregon, chapter 13, title vii, ~JS tion ~5, pages 709, 710. 

These are the seven cla-sses of vacancies authorized to be fille<:l, or declared to be vacancies under the laws of Oregon itself. If this be 

the declaration by the laws of Oregon of what is a vacancy, then a failure to elect is not a vacancy, and if the doctrine of the cases cited 

by the Senator from Indiana is sound, it inevitably follows that there 

is a failme to elect. Mr. Watts was ineligible, the election failed: and there was no vacancy to :fill. 

.Mr. MITCHELL. Does the Senat.or irom Pennsylvania bold that 

the governor of Orgeon decideu that there was a failure to elect' 

Mr. WALLACE. I have made no such a sertion. I am simply 

giving the law of Oregon. 

Mr. MITCHELL. Will the Senator yielu to me a momeut f 

Mr. WALLACE. I would prefeT that the Senator ~:~houlcl wait until 

I get tl.Jron~h. 

.Mr. MITCHELL. What does the Senator from Pennsylvania un- der ·tand to be the facts of the case as tow hether or not the governor 

of Oregon decided that there was or was not a vacancy f 

Mr. ·wALLACE. I do not know anytl.Jing about the facts further 

than as they are admitted. I am simply discussing t.he question aR a. pure, nakerl question of law. I assert that there is a djstinction in 

the laws of tile United States between a vacancy that ma.y be :filled 

by the election and a failure to elect; and if there is not a plain distinction in tbe mind of tl1e Senator, I cannot get it for bim. There is a failure to elect. That is the doctrine of all t.be cases quoted lJy tlle 

Senator from Indiana. lneligilJility, they say, produces a failure to 

elect; there iM no election: 'V.bat follow~ f Tile difficnlty then co rues witllin the case wntemplated by the provisions of the act of ld45. 

1'Lle a(,lt of 1845 fixes the time for choice of electors, and the first proviso to it was in these words: 

Provided, That each State may by la.w provide for the filling of :my vacancy or vacancies which may occur in its college of electors when such college meeta to give its electoral vote. · 

There is the ca-se of a vacancy. Next comes the other case: 

A n d pro11ided also, When any State shall have heltl an election for the purpo!le 

of choosing electors, and shall fail to make a choice on the tlay aforeRaid. t hen the 

electors may be appointed on a. snb~:~equent day in such manner as the State shall 

by law provide. 

This is found in section 134 of the Revised Statutes, thus: 

When'ever any State has held an election for the purpose of choosing- elr,ctors, 

and has failed to make a choice on the day prescribed by law, the elect()rs may be 

appointed on a subsequent day in such manner as the Legislature of such State may direct. 

First, notice a double proviso in the act of 1M5, and this is simply 

carried into the Revised Statutes. Why a double proviso f In the one ca~e a vacancy; in the other a failure to elect. If Watts was ineligible and Cronin was not elected then there is clearly a failure to 

elect, and it comes within the provision of section 1:J4, and the Legislature must provide the means of appointing the ~lecLor who has not 

been chosen. 
. 224 CONGRESSIONAL RECORD- SENATE. DECEMBER 15, 

Mr. MITCHELL. Will the Senator allow me to interrupt him a moment. l 

Mr. WALLACE. Will the Senator please aJlow me to conclude 

w.hat I have to say f 

The PRESIDING OFI<,ICER, (Mr. EATON.) The Senator fro III' Pennsylvania declines to yieLd. 

Mr. WALLACE. I am only arguing to its conclusion a legal proposition ; why does the St~nator desire to interrupt me f The Senator 

will have an opportunity to follow me. l\Ir. MITCHELL. If the Senator declines to yield, I of course submit . . .Mr. WALLACE. The constitution and the laws provide for the 

appointment of eleetors by the State. They provide for the filling of 

vacancies where there ha.s been a choice of an elector; they provide 

for the appointment of an elector in the case of a failure to elect, but 

in a totaUty dift'erent manner. The electors cannot appoint the one whom the people failed to elect; it must be done as the Legislature 

provide , and in Oregon the Legislature has made no provision and 

hence my mind inclines to the belief t.hat there are but two electors 

legally appointed in the State of Oregon, and that no sncb vacancy 

has occurred as authorizes the electors to fill the place; but, on the 

contrary, it is a failure to elect, and the Legislature of Oregon has not 

provided means by which this failure to elect shall be supplied. 

I reach these conclusions from the written law. I am subject to cor- rection; I may be in error, but I read the law as I find it. Why is 

section 134 found in the Revised Statutes f If Cronin i.'! not elected 

and Watts is not elected, then evidently there is a failure to elect, and 

then the Legislature of Oregon has not provided the means to fill the 

third place. That is a conclusion that cannot be esc~ped from if my 

view of the law be the correct one. Mr. President, I have deemed it worthy of the time I have occupied 

to bring these facts and this condition of the law t.o the notice of the 

Senate. If I have taken the time of the Senate improperly, I have 

simply to apologize for so doing. 

Mr. MITCHELL. Mr. President, I bad not intended to take u19 the 

time of the Senate in discussing the questions involved in the resolution pending; but from th9 course taken in this debate I feel com- pelled to devote a little while to a consideration of some of the points 

involved. 

We have presented the singular spectacle in this discussion of a case wherein no man, no Senator, nobody, S<T far as· I am advised, 

raises any que~:~tion in regard to the vote of the people of the S~ate of 

Oregon in the recent election. It is not denied, su far as I am advised, by any Senator on this floor, by any man anywhere of any po- ~itical party, that a majority of the legal voters of the State of Oregon, at the recent presidential election, cast their votes for the electors on the republican ticket. It iR alleged, however, publicly proclaimed, 

generally believed by everybody, that the governor of the State of 

Oregon, instead of signing the lists which the laws of Oregon required - him to sign, certifying to the fact that certain persons bad received 

the highest number of votes, bas refused to do that thing, and bas issued his certificate of election to one person, admitted by all to have 

received less than a majority of all the votes cast for presidential 

elector in that State. I am not surprised that Senators on thi~:> tloor 

decline directly to come to the point and defend the action of the 

democratic governor of the State of Oregon. I am not surprised that 

the honorable S'enator irom the State of Ohio, [Mr. THURMA~,] the 

able and eloquent champion of the democratic party in this honorable 

l>ody, hould decline to assume positively and directly the deft!nse of 

the action of the democratic governor of the State of Oregon. I am not surpri ed that in the speech which he has just made to this 

l.wnorable body be has shielded himself behind the opinion of a lawyer in Cincinnati; that, instead of coming up boldly to the front, 

before the Senate, before the people, before everybody interested in 

this great question, he bas shielded himself and his position behind 

the opinion of a man who, probably, for $50 or $500 could have been 

employed to prepare and deliver an opinion upon the other side much 

stronger, ID:UCh abler, mnch more to the point. 

The question, .Mr. President, I propose to discuss, is as to the right, as to the power of the governor of the State of Oregon to a-ssume juri diction and pass upon the eligibility of Mr. Watts as one of the 

presidential electors of the State of Oregon. He has assumed to en- tertain jurisdiction upon that point and to adjudicate in reference 

to that matter~ Is there a Senator on this floor who is willing to come to hi defense to-day and to defend<hl.s right to do what he has done 

in reference to that matter 7 

I have no set speech for this occasion ; I have no written speech for 

to-day. What I want to know from the democratic party of the 

United States of America, represented upon the floor of the Senate of 

the United States, is, whether any member of that party is willing to 

ri e in hi place to-day to affirm the 1·ight of Governor Grover of Oregon to adjudicate upon that question; and I pause for a reply. Not one rises. Not a democrat within the sound of my voice, not a Senator of the United States belonging to the democratic party dare rise 

in his plac to-day on this floor, and upon law, and justice, and right 

defend the action of the democratic governor of Oregon in his refusal 

to is ue a certificate of electiou to the person selected by a majority 

of the votes of the people of Oregon, and in issuing it to a man whom 

the majority of the people of the State of Oregon decided they did not 

waut as an t:lector. Am I wrong in my assertion1 I pause again for a 

reply. No Senator from Sena.torTHURl\1A~down dare rise in his place 

to-day upon this floor and defend npon law, npon principle, upon justice, the action of the governor of the State of Oregon. I pans agairt 

for1nepJy. Theydarenotdoit. Noman whoi. a lawyercan<lcfend it. 

It was a gro s usurpation of power, a. willful violation of law, au attempt upon the part of one official to set at defiance and trample under 

foot the expressed will of the majority of the people of one of the 

States of this Union. Does anybody deny it f Does my friend from 

Ohio deny it.f Can he defend it upon the law, upon the facts t He 

cannot. In the discussion of this question the bonora ble Senators upon 

the other side have ignored the fact that the appointment of electors 

by virtue of the provisions of the Constitution of the United States 

of America rested with the State of Oregon, that it is to the Legislature of that State that is delegated the power of providing the man- ner in which electors shall be appointed. The Constitution of the 

United States, in article~, provides thatEach ~tate shnll appoint, in such manner as the I .. e~rislature thereof may direct, a ml'I'Ilb~r of electorS, equal to the whole nnm bt~rof Senators and .Representatives to which the State may be entitled in the Congress. 

Now let us examine what the Legislature of the Stat-e of Oregon bas 

done in reference to this matter; let ns examine wh:itt the powers of 

t.be executive of the State of Oregon are under the constitution of that 

State, and then we shall be enabled to determine a to the character 

of the action of Governor Grover in refusing to sign the list as provided by the ,law. I call attention in the first place on this point to 

article 1, section 1, of the constitution of the State of Oregon in re- gard to tbe distribution of powers among the difi'erent departments of 

the government of the State of Oregon. Article :3, section 1, provides as follows: 

The powers of the go•ernment shall be divided into three sepa.rat~ departments, 

the legislative, the executive, inclurling the administrative. ami the judicial; and no person charged with offir.ial duties under one of these departments shall exer- ciee any of the functions of another except as in this constitution ex:pres~:~ly pro. 

ti«;;ed. · 

I call attention also to article 2"2 of the constitution of the State of 

Oregon for the purpose of showing what the powers of the executive 

of that State are under th~ constitution of that State, because it will 

l.le admitte(l by every person that his powers are defined ancl circumscribed and controlled by the provisions of the constitution of the 

State of Oregon. Section 1 of article 7 provides: 

The judicial power of the State shall be vested in a supreme court. circuit courts, 

aml county court, whir.h shall be courts of record, having general juri diction, to be definec( limited, and re)!ulated by law in accordance witi:t this constitntiou. 

Justices of tho peace may also be invested with limited judicial power., and municipal courts may be created to administer tlle regulations of incorporated towns and 

cuies. · 

Now I call attention to section 9 of the same article; which provides as follows: · · 

.AU judicial power, authority, and jurisdiction not vested by this constitution, or b7laws consist{lnt thereWltb. exclusively in some other court, shall belong to U1e 

Circuit courts; and they shall have nppellate .iurisc.lictiun nnd supervi ory control over the county courts, and all other inferior courts. officers, and trilmna.ls. 

I understand that the democratir. party is a. strict adber nt to tho 

doctrine that the powers parceled out by the General Goverument and 

by the conRtituti0ns of the State govern111ents to the rliffereut departments of those governments should be circnmscriued ancl krpt within their respective boundaries ;_~.tall times and nncler all circumstances, 

and upon that question I desire to read from Story on tlw Coustitution, section 520: 

In the establishment of a free government, the rlivision 9f the three great powers 

of ~rovemment, the executive, the legislative, and the judicial among dift'erent func· 

tionaries, bas been a favorite policy with patriot& and statesmen. 

Especially with democratic statesmenIt bas by many been deemed a maxim of vital importance, that thMe powers should forever be kept s~parnt~ aml ill tinct. .And accorrllu!!ly we find it laid clown 

with emphatic care m the bill of rights of several of the State coustitntions In 

the con. tiL11tion of Massachu etts. for example, it is declared that "in the govern- ment of this Commonwealth, the lel\i. lative departmeut shall never ex:err.ise the 

executive and judicial powers, or eitner of them; the executive shall ne,·er exer- cise the legiRlative and judicial powl"rs, or either of them; the judicial shall n ver exercise the legislative and executive powers, or either of them; to the end it may 

be a government of laws and not of men." 

Again, the writers in the Federalist lay down this doctrine: 

The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, selt'-appointed, or elective, may be justly pronounced the very de.linitio~ of tyralllly. 

No Senator upon this floor will take the position that under these 

several provisions of the con titution of the State of Oregon, the governor of that State can exercise judicial power. It is claimed, never- theless, by indirection, by the opinions of outside men, by employed 

attorneys if you pleaBe, that the governor had the right to exercise 

judicial ftmctions. My point is that under the laws of. Oregon, under 

the constitution of the State of Oregon, judicial power doe not belong to the governor of that State; he has no right to exercise judicial power in reference to the matter of elections; he is a mere ministerial officer; his duties are defined ; they are imperative ; they are emphatic, by the terms of the constitution, and oy the terms of the 

law, and be has no right to go behind these several provisions. 

In what I am about to say, I do not intend to enter into t.he question 

of the eligibility of Mr. Watts as an elector. I do not enter into 

the question at all, so far as his appointment is concerned; whet.ber, 

if a majority of the votes were cast fnr a penon who was ineligible, 
f 

k 1876. CONGRESSIONAL RECORD-SENATE. 225 

therefore the pereon who was eligible wa5 elected, although he had 

only a minority of the votes. I de ire to confine my argument for the 

j.ime being to the question of the power of the governor of the State 

in the pre.mises, antl I undert~ke to say here to-day, without fear of succe:sful contradiction, that the powers of the governor of t.he State 

of Oregon, under the Constitution and under the laws, are ministerial pure!~· ; that they are not judicial; that be bas no power to entertain 

the question as to whether or not Mr. Watts was eligible as an elector 

of President of these United States. That. is the point I destre to 

make, and I undertake to say that in assuming to exercise that power 

the governor of the State of Oregon violated the plain antl express provil:;ions of theconstitution of his State and of the laws passed in pur- suance thereof. That is the point upon which I stand here to-day 

ready to answer any question that may be propounded by any Senator 

of the. United. States upon the other side of this liouse. They have 

evaded this qnestion in the discussion that they have presented to the 

Senate and to the country. They have ignored the constitution of the 

State of Oregon and the laws pa ·sed in pursna.nce thereof. If he had 

the power to entertain this question and to pass upon the eligibility of M.1'. Watts as a presidential elector, then it must be conceded by the 

gentlemen on the other side of the Honse that he would have the 

power to entertain any suggestion that might be made in r~ganl to 

the ineligibilit.y of any person electetl by the people of the State of 

Oregon to any office for which he is to issue his certificate. What 

would this lead to f I desire to att.ract the attention of the Senate 

to this point. 

I ask the attention of my honorable friends on the other side of 

the bon e 'to certain provi~:~ions of the constitution of tke State of 

Oregou, and the :first to which I attract their a~tention is section 9 

of articlo 2, which provides as follows: 

Every person who shall give or aecE>pt a challen~e to fig-ht a duel, or shall know- in~dy carry to another p~rson such challenge, or who shall agree to go out of the 

State to fight a duel, shall be ineligiblo to any office of trustor profit. 

Now, the question I want to propound to my democrat.ic friends is 

this: Suppose a. person who is a candidate for the office of State 

treasurer, if you please, in the State of Oregon receive a majority of 

all the votes cast for that office in that State. The secretary of state, 

under his duty, decides that he has received a majorit.y of all the votes . ca t for State treasurtr, and before the governor has signed his cer- tificate of election a suggestion is made to the governor that the per- son so elected has lJeen guilty of a violation of this provision of the 

constitution of the State of Or gou, to wit: that he had given or accepted a challenge to fight a duel, or that he had knowingly uarried 

to another person such challenge, or that he had agreed to go out of 

the State to :fight a duel. I want to know if my ·uemocratic brethren on the other side of t.he house think the governor of the State of 

Oregon co~d adjudicate on that question. Could be exercise j ntlieial 

functions Y Could he pass upon that question f Could he determine w ltether this man, so elected by a majority of the votes of the people, 

should not only be disfranchised but much worse than disfranchised, 

by holding that he should not have· the right to a certificate of election to the office for whiuh be had been selected by the people t -If 

t!Je governor of the State of Oregon had the power to decide upon the 

eligibility of Watts as an elector, then, as a matt.erof course, he woulcl 

have the power to decide upon the eligibility of a. man selected uy a majority of the people in reference to whom it had beon suggested that~ was guilty of sending a challenge to fight a duel. 

But not only so; I call your attention further, Mr. President, to 

section 10 of article 2 of the constitution of Oregon, which provides as follows: · 

No p{'rson holding a lucrative office or appointmevt under the United States or nuder this State sball be eligible to a seat in th«:~ legislative a.qsembly; nor shall 

any person hold more tban one lucrative office at the aame time, except as in this con. titution expressly permitted; provided that offices in tJ1e militia, t<> which 

there is attached no annual salary, and the office of the postmaster, where t-he com- pensation does not exceed 100 per annum, shall not be deemed lucrative. 

Will my democratic friends contend that the governor of the State 

of Oregon can assume judicia.! functions and pass upon the question on the suggestion of a mere partisan, if yon please, that a person se- lected by a majority of the votes of t.be people of the State of Oregon 

is at the same time holding a lucrative office or appointment under 

the United States or under the State Y Does that ldntl of power belong to the executive of the State of Oregon f Where does he get it f 

But this is not all. Section 11 of the same article of the constitution of Oregon provides as follows, and I call especial a.ttention to 

this provision : 

No person who may hereafter be a collector or bolder of public money shall be eli~i ble to any office of trust or profit until hesball have accounted for and paid over, a.ccording to law, all sums for which he may b!' liable. . 

Suppose a man was selected for the office of secretary of state or of 

state treasurer or of district attorney, if you please, under the constitution of the State of Oregon by a majority of the voters in that State, 

and the secretary of state, under his dnty, shonld decide in the can- vass of the votes that such person bad received a majority of all the 

vote cast, and yet before the governor signed the certificate, which 

the law says emphatically be shall sign, some partisan, some man, I care not who, should come in and by affirlavit or otherwise suggest to 

the governor of the State of Oregon that such person was ineligible 

to his office under section 11 of article 2 of the constitution of the State 

for the reason that he had been a collector or holder of public money 

V-15 

and that he bad failed to account for and pay over according to law 

all sums for which he was 1 ia l>le f Will my democratic friends contend 

that. the governor of the State of Oregon bas the power under the con- stitution and laws to entertain jurisdiction of thatqnc.>stion. to invt>stigate that qnt>stion, to determine that question f No lawyer on the 

other side of this House will for one momeut. assnmo any such position 

before the Senate or before the country. Why t Becanse i u the ti rst 

place t.he office of governor of the State of Oregon in reference to this 

matter is merely and purely ministerial, and becant:e again there are other insupera hle, insurmonntaule objections to any such as.<~umption ; 

and .what are they t The right to hold office under the Government 

is one of the highest rights that can attach to the American citizen. 

How is he to be deprived of that right on any alle~ation of ineligibility t By the mere ipso dixit of an execnti ve officer t Not by any man- ner of means. Only b.v the adjndicn.tion ofthejndieial department of 

the Government; by that and by that alunt-. What does the eonRtitution of the State of Oregon say on that subject f I turn to the bill 

of rights and I fiilu in the seventeenth subdivision of the bill of rights 

of the constitution of the State of Oregon this proviston: 

In all civil cases the right of trial by jury shall remllin inviolate. 

Am I, on a mere suggestion of my political adversary, when I have 

received a, majorit.y of the votes of the peop!e of my State, to be disfranchised and deprived of holding au office of honor and trust and 

profit by the mere ipse dixit of tbe executive officer of my State in ref- erence to my ineligibility under that clause of the constitution which 

says that "no per~on who may hereafter be a collector or holdP-r of 

public money shalLbe eligible to any office of trust or profit, nntiJ he 

shall ha-ve accountecl for and paid over, according to law, all sRms for 

which he may be liable!" I take it.not. I take it that upon that 

question I have a right to demand, as the constitution of Oregon says, a trial by jury; antl yet the policy suggested, not defended, by the 

leaders of the demotrntic party on this floor, because they cannot defend it, would say that I was at the mercy of the execnti ve of my State, 

that my rigllts as a citizen of this country were to bo determined by an executive officer of the State, when the constitution of my State 

says that ''in all civil cases the right of trial by jury shall remain inviolate." What does it mean when the constitution says that the 

right of trial by jury shall remain inviolate T There is a clause some- thing like that, if I remember rightly, in the Constitution of the United 

States, not exactly the same, but substantially this, that in all suits 

at common law the ri~ht of trial by jury shall be preserved where the 

value in controversy is over $t!O. 

Upon that point I call attention not only to subdivision 17 of the 

bill of rights of the constitution of the State of Oregon, but I call attention to the Constitution of the United States, a.rticle 7; :ilso to 

Parsons vs. Bedford, ::l Peters, 439; Webster 1·s. Reid, 3 Dallas, 297, 

and to 11 Howard, 437, for the pn.rpose of showing that these provisions include not merely mod~s of pror.eeding known t9 the common law, but all suits not of equity or aclmira.lty jnrisdiction by which 

legal rights are settled and det.errnined. Wllat bigber legal right 

could be suggested than the right to exerci~e the duties of an office 

when the majority of the people have selecte(l such person as tbe per- son to exercise such office f Therefore, .Mr. Pre ident, when it is as- serted here by implication, because it is not asserted di.rectly, that 

the governor of the State of Oregon, a mere executive officer, a mere ministerial officer, has the right to pas judicially upon a question as to the eligibility or non-eligibility of tllis ma,n or that man for whom a majority of the votes of the people of the State have been cast, it is 

to assume a position that cannot be maintained or defended either 

here or elsewhere. 

But, Mr. President, was the action of Governor Groverin assuming 

to entertain jurisdiction as to the eligibility or non-eligibility of Mr. 

Watts the assumption of judicial power t I assert that it was. I as- sert that it was the exercise upon his part of judicial power of the 

gravest character. \Vhat did be as.Sume t He assumed that there was no vacancy in the elect.ion of electors fqr Presitlent a.nd VicePresident of the Unitetl States. Now, I desire to call your attention 

to the laws of the State of Oregon upon this question, by- which it will 

be conceded that Governor Grover should be bountl. I cite first sec- tion 45 .of title 7, page 709 of the codo, as to the wanner in which va.-. ca.ncies may be created in the State of Oregon : 

Every office shall become vacant on the happening of either of the following events before tho expiration of the term of such office: . 1. The death of the incumbent; 

2. His resignation; 3. His remoTal; . . 4. His ceasing to be an inhabitant of the diRtrict., county, town. or villaO'e for 

which he shall have been elected or appointed or within which the duties of hiR office are required to be discharp:ecl; 5. His conviction of any infamous crime or of any offense involving a violation of 

his oath; 

6. His refusal OT neglect to take his oath of office or to givo or reMw his official 

bond. or to deposit such oath or bond within the time prescribed by law~ 

7. Tb.e decillion of a competent tribunal declaring void his election or appoint- ment. 

Then, under the constitution and laws of Orel!on, if a person who 

is ineligible is voted for by the people of that State for any office, 

how i@ that election to be declared void f By " the uecision of a com- petent tribunaL" Governor Grover assumed to be that" competent 

tribunal." I assert that be bad no power to assume that position or to take any such position; but he did take it. Now I intend to follow 
226 CONGRESSIONAL RECORD-SENATE. DECEl\fBER 15, 

to tbe end tbe legitimate results of such a position. He as umed to 

pass npou the question of the eligibility of Mr. Watts. We all admiL th, the did pass upon that que ·tion. He decided that Mr. Watts 

\"f::I.S ineligi ule. What was the result under the laws of Oregon f It 

wu.~ to create a vacancy. How untler the laws of Orf'gon was that 

vacancy to be filled t Was it to he filled by the governor f Is tllere 

any Senator ou this floor who can point out to me any authority for 

the governor of Ort\gon t{) fill a vacancy iu the office of presiuential 

elector t Not one. Why f Because the matter of the appointment 

of pr('siclential electors is left to be appointed in such 111anner 36 the 

Legislature may direct. The Legislature · of the St.ate has provided 

that in case of a vacancy it shaH he filled bowf · By the governor f 

No, sir. By the judges of the supreme court f No, sir. By whom f 

By a uew election f No, sir. By whom f By the electors that have 

been elected. Tllat is the law. 

Mr. BOGY. .Will the Senator permit me a question f 

Mr. MITCHELL. Yes, sir. 

M.r. BOGY. Will t.he Senator read the law which authorizes tbe 

electors to fill a vacancy, if tllat be the case T 

Mr. MITCHELL. I will with. the greatest of pleaaure. I will read 

from section ~ of the act of October :U, 1864, to be found on page 849 

of the General Laws of Oregou, and it reads as follows: 

Tho electors of President and Vice-PresidPnt shall convene a.t the seat of govern- ment on tho first Wednesday of December 11ex:t after their election, at the hour of 

twelve of the clock at noon of that day, a.nu if t.here shall beanyvacancy in the office 

of :m elector, occasioned by death, refusal w act, ne:;dect to lLttend, or otherwi e, the 

electors present shall immediately proceed to fill, by viva voce and plurality of votes, 

such vacancy ill the electoro) colll'l!e. and when all the electors shalJ.appeur, or tho 

vacancies, if auy, sh!l.ll-havo been tilled as above pt·ovided. such electors shall proceed to perform the duties required of them by th~ Constitution and laws of the 

United States. 

Mr. BOGY. Does the Senator contend under that law that tbe two 

electors who were legally elected beyond all doubt could fiJl what be 

calls a vacancv there where there bad been no election at all f If there 

had been no .eiection there was no vacancy ; or if it may be so called, can that be the vacancy contemplated by lawf 

Mr. MITCHELL. I do not assume or concede that there was no electio!t, so far as that is concerned ; and even if I were to concede 

that., I would still contend that t.here was such a vacancy as might 

be filled by the electors who were elected, because the language is 

broad. 

Mr. BOGY. The reading of that law is that where the elect.or ha.a 

been elected, bnt owing to death, resignation, sickness, no matter what 

may be tlte cause, be is unable to reach the place wllere the college 

meets, so that there isthen avacancy, theother mayfill it; but where 

there is no election at all-! am perfectly fair in my inquiry because 

I t.hiuk this one of the great points, and perhaps the point of this case at l~t-'how can a vacancy of that kind, if it can be called so at all, 

be filled f As I have understood,. a imilar ease occurred in Vermont 

and there the Legislature met and supplied by Jaw the omid8ion. 

The same thin~ occurred in Rhode Island and there the Legislature 

met and snpphed the vacancy itself. That it is competent for the 

Legislature to do so I do not deny, because the Constitution says that 

electors shall be elected iu the manner provided by the St.ate Legislature, and they might have appointed anybody to ca,st votes for electors; bnt there is no provision of that kind here. You are relying on that law when according to my understanding of that law, though 

I may be wrong, it is not a vacancy contemplated by it where there 

has been no election. 

Mr. MITCHELL. I clo not know what the Legislature of the State 

of V crmont may have done out of abundant cantion and to cover any 

objection. I am here, though, to answer the Senator's question be- cause he has asked me a perfectly pertinent question. I am not here 

to say what the Legislature of Vermont may have done out of abundant caution; atthesame time I am advised that tile laws of the State 

of Vermont were entirely difterent from t.hose of the State of Oregon 

and the Legislature of Vermont made them the same in this respect 

when it was called together. 

I undertake to say that the statutes of the State of Oregon have 

provided for the filling of any vacancy that may occur in the office 

{)f pr~siuential elector from any cause whatever, and that it is the 

duty of those electors to fill that vacancy. Everybody knows, the 

Senator from Mis ow.i will a-dmit, that Oregon is entitled to t'hree 

presidential electore. Now, even conceding for the sake of the argnmant, which I do not admit as matter of fact, that there wa.a no election in the case of Watts, I still contend that under that clause the 

two persons who were elected had the power to fill that vacancy, that 

there waR a vacancy, and they not only had the power but it was their 

dnty to fill it. · I assume in the firet p1a-ce that the governor of the State of Oregon hau no power to exercise judicial functions; that he had no power to 

entertain the question suggested to him, no matter by whom, as to 

the eligibility or ineligibility of Mr. Watt.s; but, as a mattel' of fact, as l.Ji tory tells us, be uid assume to exercise that power f What is 

tile resnlt f He assnmerl to pass upon the question as to whether or not the election of Mr. W a.tts as one of the pre idential electors wa,s or was not void; be assumed that he was the "competent tribunal" sp~cifl d in the statutes of the State of Oregon who should pass upon 

that question. I say be had no power to do. it; l>ut he ditl it and I now t.ako him at his word, and where does it leave bim f He adj ndicates that question; he decides that Mr.~ atti was ineligible. ·what 

• 

then f What follows legitimately T That there is a vacancy in that 

office; and then the qne tion nrises under the constitution aud the 

laws, who has the power to fill tbatvacancyf Is itthegovernorf Is 

it the chief justice f Is it. the people of the State of Oregou by a new election f Or h~ it, as the statute plainly ~ml unequivoually provides, 

the two men who were elected electors and in reference to whom 

there is no controversy T They had the power to fill the vacancy, 

and not·the e:xecntive. 

So, Ur. President, I care not what may be said about the eligibility or uon-eligibility of Mr. Watts, in no possible event had the governor 

of the Statt~ of Oregon the right or power undertbeconst.itut ion ancl the 

laws to undertake to say that somebody else was elected. I undertake to say that any such action on the part of the executive Wlila 

usurpation, a. violation of law, an indefensible act upon hi part that 

will stand while history staml~; as an official iniquity in this centennial year which neither time can efface nor posterity condone. What 

does lte do f In the face of the law, in the face of the constitntion, 

which distributes the powers of the differ~nt departments to different 

offices of the government of that State, what does he tlof He not only 

undertakes to exercise judicial functions and to determine as to the 

question of tbe eligibility of Mr. Watts, Lnt he goes further and decides what f Decides that Mr. Cronin, a man whom the majority of 

the people of the State of Oregon selected to stay at home should cast 

their vote for President and Vice-President of these United States. That 

is what your democratic governor of the State of Oregou has clone. 

Are yon his defenders f Is it defensible, either upon the law or upon 

f be facts, in reason or upon justice f I take it that it i~:~ not . . He issnes 

the certificate to Mr. Cronin, aud what does Mr. Cronin no f In this 

connection I ca1l yonr attention to the law as to the dnties of the 

persons selected as electors; and in that conneution I will call attention to the action of Mr. Cronin. Section 2 of the act of October 24, 

1864, provides as follows: 

The electors of Presidentancl Vice-President shall convene at the seat of govern- ment on tho first Wednesday of December next after their election, at the boor of twelve of the clock at noon of that day; an1l if tho.-e shall he any vacancy in the 

office of llll elector, occasioned by death, refusal to act., neglect to attend. or other- wise, tho electors present shall immediately proceed to fill, by viva voce and plurality of votes. such vacancy in tha elec'oraJ colleg:e ; and whl'n all the electors shall 

appear, or the vacancies. if any, sba.ll bave been filled as above provided, tmoh elect- 01'1! shall proceetl to perlorm the duties 'required of them by the Coust.itution and 

laws of the United States. 

Governor Grover issued his certificate to Mr. Cronin, the man whom 

I have said t.he majority of the people of Oregon elected to stay at 

home, and what does he doT He undertakes to comply with section 

2 of the act of October 24, 1864, and what is that T He uudertak to , oo'nvene; to convene hintselj. For the purpose of showing how indefensible the action of the governor of Oregon is, I have already called 

attention to section 2 of the act of October 24, 1864, in reference to tlle 

cont·tming at the seat of government of the electors. 

The electors of President and Vice-President shall convene at the seat of govern· ment. • 

This certificate waa issued to Mr. Cronin, as we are told, and Mr. 

Cronin oonrened and declared two vacancies ann proceeded to fill 

them. Webster defines tne word "convene," as follows: 

To come together; to meet; to unite. 

Again: 

To come together; tn meet in the same place; to assemble. 

Just imagine my friend Cronin coming together with himself; imagine him meeting himself, uniting with himself,.coming together 

with himself, meeting together with bim~elf in the sa.me place, a-a- sembling with himself! Again Webster defines the word" convened," 

as follows: 

Assembled, convoked. 

Imagine myfriencl E. A. Cronin" assembled together" for tbepnrpose 

of what f Of electing a. President of theRe United States of America. 

"Convoked I" E. A. Crouiu convoked for the purpose of giving the 

cast.ing vote in reference to the election of a President of forty-five 

millions of people! Again, a "convener" by Webster is defined, 

although the word is obsolete, asOne who convenes or meets with others. 

Just imagine! It reminds me of Dundreary, who, in his sapient 

applicat.ion of various homely proverbs, such as "a wit~e child," &c., 

ays "Birds of a feather flock together;" and his feeble intellect 

is impressed with the idea and he comments upon it by saying "Flock 

together! flock together! Of course they do. Who ever hearcl of a fool of a bird that went off in a flock all by himself f" [Laught.er.] 

Unfortunately we have heard of that fool of a bird in this case who 

went off in a flock by himself, who convened by himself, who a-ssembled with himself, who met with himself. I am not surprised 

that my friends on the other side of this Honse failed to come to the rescue. I am not surprised that t.bey shelter theniMelves behind t-he 

opinions of this lawyer and tllat lawyer, written perllaps for pay, who' 

have not the honor of holding sea,ts here, for the purpose of defeuding 

by indirection the act of the executive of a great State that is indeed 

perfectly indefensible in any point of view. What does the statute say further T 

The electors present shall immediately proceed to fill, by vit:a voce antl plurality 

of votes, such vacancy in the electoral college. 
t 

t 1876. CONGRESSIONAL RECORD-HOUSE. 227-

Did the men who framed that law contemplate any departure from 

the principles laid clown by Dunrlreary T Certainly not. They never supposed that one fool bird would flocktogetherall byhimself. They 

had no conception of it at that time; but by the phra e the" electors 

pre eut 17 they contemplated whatf As a matter of course that more than one should be present. 

Hy the way, I have a decision upon that qnestion reudered within' 

the last few days uy a ver.v high court in England. I refer to the 

supreme court of judicatme in Englanrl, which has been bnt recently 

organized to fill the place of the House of Lortls in this·respect. It 

is one of the first cases they have decided, and I ask the Secretary 

to 1·ead the report of that case from the Loudon Tim~ of November 

22, 1876. It is a law report: 

Honse of Lords, Nov. 21-appeals. 

Supreme court of judicature-court of appeals. Sittings at Westminster before Lord Chief-Justice Coleridge and Lords Justices 

Mellish, Brett, and Amphlett. · 

The case is that of Sharp t:s. Dawes. I ask the Secretary to read it· 

The Secretary reatl as· follows : 

SHARP VB. DAWES. 

In this case the very novel question wa.'i raised whether one shareholder in a company conld by himself con!'tituto a '' meetin~" for the pnrpose of makili~ calls 

ancl transactio!! bmdness generally where there was no provision in the rn!es for a "quorum." Tlte action was ln·ought for the amount of a call upon certain shareR, 

which call WM made a.t a meeting, du1y convened, of a company tronsacting busine8s in the Stannaries, on the coRt-book principle, undct· 32 and 33 Viet., cap. 19. 

Proper notices bad ueen given under the rules, of a meeting to be held on the :30th 

of December, 1 i4. On that day, at the time of the mPeting, only one shareholder attended He wok the chair and passl'<l ~overal resolntiom:~, including a call of 4s. 

6d. per ~:~bare upon tho capital of tho company and enrling with a vote of thanks to bims('lf as chairman. Tho actwn was tried by Baron Bram.weU. without a jury, on the 16th of May last, and tile question as to the valiclily of the call was rrservctl 

for tho Qneen's Bench division, where Mr. Justice Blackburn anrl Mr. Justice 

Qnaiu decided that, the meeting having been properly convened, the resolutions 

passed there by tho single shareholtlcr were \alid. ., Ou appeal, Mr. HoU, for the appellant, argued that there coulrl be no 11 meeting" unle~s at least two sbareholde1·s "met" each other. It was merely an abortive at- tempt at a meetinl!. 

Mr. Brown, Queen's counsel, and Mr. Lane, for therespondents, argned that the 

met>ting was properly convened, and therefore was Yalid. Tbe shareholders Yote 

aceortling to the value of thtir shares. Tllereforo, this one gentlomau, if a few 

othet· shureboluers with a less nnmber of sbart'S bad come in, coulcl have out-:votell 

them aud passed resolutions. Was be to be deprivt>tl of this right because they re- fu ed to come. The condition~ precedent to make it a JOP.etin~ ltad heen fulfilled. 

Lorfl Justice MELLI8H. You admit that if no sharehohler had attended there wou!d have been no meeting 1 

Lord Cor.JWJDGE. No. be does not, if the conditions precedent have bren fulfilled. 

The learned counsel urged, if no one is there. of course, nothing can be done. 

Bnt 1f oue is there he can tranr.act business. The word 11 meeting·" is uRed iu a technical rather than in its popular sense. I.onl COLERJDGE The question is, what does the word "meeting" mean within 

the act 32 and 33 Vict.,cap.19 ~ No lloubt, it might be that tbeworclruightinclude an assemllly of on~\ within th(l meaning of some particular act, but there are no worcls here to show t.hat it is used otherwise than iu its nsual signification. In or· 'l.inat·y langua.e;ea meeting must be more-than one. Therefore. I am·of opinion that in this case there wa.'l no valid meetin~J; · Lord Jus lice MELU ·H. I am of the same opinion. It is admitted that if no shareholders como tht're is no meet in~. a.ud I do not see why one sltonld constitute a "meeting "more than none. We must adhere to the piain mea:dng of language. Lortls Justices Brett and Amphlett concurred. 

M:r. MITCHELL. Mr. Pre ident, I think that ought to dispose of 

any serious question that might be raised iu regard to the propriety or authority of one per on undertaking to convene, to assemble together with himself, to have a e.onvocation in regard to the transaction of business. I do not suppose that any Senator on this floor will 

treat that with any kind of seriousness. I do not understand that 

any Senator on this floor is here to-£lay to defend for one minute the 

action of Governor Grover in undertaking to issue a certificate to Mr. 

Cronin. If any such defense is to be made, I should like to hear it; 

I should like to know it. I was a little surprised, and gratified at the same time, at some statements made by my friend from Ohio [Mr. 

THURMAN] yesterday. I quote from the RECORD: 

Why, Mr. PresidentSays heit i.<i a new feature introduced into the American Constitution and the American 

system of governmen~ _Wo did think once that the only question about an election was, wuobasa.maJOfltyof the votes~ That is what wetbourrbt; that is whatonr 

fathers thought when they made our Constitution; but that is ~ot tho question any more. The qurstion is not who has tbe majority of the votes, but who has the ma- jority of the men who count the votes. Mr. MITCHELL rose. Mr. T.HURMA."l'. I would rather not yield just now. ,If ;you have a re~urning b!>ard with_ a majorityreany to count out democratic can- didates and conntm repubbc:m cancltdates, they have a power as great a.~ the trib- unes of the Roman people had to veto the voice of the people · not simply to veto wha.t the people have !lone, but to determine what the people ought to have done 

according to their judgment of what they think to be best. That is it, sir. ' 

Sir, what the Senator :b·om Ohio saiclyesterday is applicable to the 

case u~der discussion to-day. 'Ye did think at one time, all of us, 

repn bhcans and democrats, that the only question was as to what 

the_ majority of the people had determined; but, as the Senator from 

Ohto says, the question now is, when applied to transactions that have 

recently taked place in the State of Oregon: "Not who has the majority of the votf's, but who bas the majority of the men who connt 

the votes." In the States of Louisiana and Florida and South Caro- lin~ t~ere was a qtwstion before t.he American people as to whom the 

maJOrity of the people of those States gave their votes for President 

and Vice-President. Is there any such question with reference to the 

State of Oregon f Does any ~an or any Senator or anybody deny that 

a large majority of the people of that St.ate gave their Yotes for the 

republican candidate for presidential electors t No such soggestjou 

has been made here. 

In what I have said to-clay I have not argued the question at all in 

regard to the eligibilit.y or non-eligibility of Mr. Watts. Tbat was argued in extenso heretofore by aLter men iu this body. I care not 

what the general rnle is upon that question; I plant myself npon the 

constitution of the Stato of Oregon and up1'n t.l1e laws passed in pur- suance t.hereof, and I assert that the governor of that State, in as- suming the exercise of judicial functions, in attempting to pass upon 

the eligibility of Dr. Watts, traus~reesedthe law, usurped power, attempted, if you plea e, by frauduJent pr?ctices to set aside and 

t,rample upon the will of the majority of the people of one of the great 

States of the American Union. I say it noes not belonO' to him to pass 

npou that qnest.ion, whatever way the question shon1d ue decide<\; 

ancl in ru;suming to entertain jurisdiction of tltat q oestiou be has transgressed the law; he has not only undertaken to trample upon the will 

of the majority of the people of bi8 own State, but by the sn.me fraudulent practices he has attempted. to override the constitiutioually ex- pressefl will of a majority of the great States of this Union in refer- ence to the selection of the Chief Magistracy of forty-five millions of 

people. That is what I say, and if I am "'rong I want to be corrected now. 

Bot Senators upon the other side of this question who have discussed it have not only ig-nored the constitution of the State of Oregon and the laws of the State of Oregon, they have talked about a.bstra.ct questions, f,hey have shielded and sheltered thems•,lves behind 

the opinions of lawyers who have eitbe volunteered opioiont:~ upon 

this question or who have been paid for the same. I take it for granted 

that Mr. Judge Hoa.dly of Cincinnati ha.s acquired all the fame that 

he ever expected to achieve by his opinion to Governor Grover. He 

has obtained the notoriety of having his opinion read from that desk 

to go forth before t.he people of this country. 

Mr. President, I do not desire to detain the Renate longer. My friend 

from Ohio yesterday [Mr. THURMAN] referred to th~ Roman tribunes 

who exercised the power of not only defeating the will of the senate 

an<l of the people, but who assumed the right to determine what the 

people ought to have done. Yes; but a check came to that, let me tell my friend from Ohio. There was a certain Tiberi us Gracchus in 

Roman history who inaugurated the policy that au appeal should 

be taken to the people from the Roman tribune who should undertake to veto the decision of his associates or the deci. ion of the Roman 

Renate. 'l'bat poH.cy was inaugurated three hundred ye~Lrs before the .Christ,ian era, and if we have a Roman tribune to-day iu Oregon who 

would assume to oven-ide the will of the majority of the peopl~ of that 

State, I propose that we have another Tiberi us Gracchus, who will appeal to the people, to the people not only of the St-ate of Oregon but 

the people of this whole country; and in reference to their decision on this question I have no fears. To that trilmnal I cheerfully submit 

the question, and the more cheerfully from the fact that my democratic 

friends on the other side of this Chamber, instead of comiugout openly 

and above-board and defl"nding the' action of their democratic gov- ernor in the State of Oregon, seek only 1o defend that action by iuuirection, shielding themselves behind t3e opinions of irresponsible men. Mr. President, it is vory late aml I shall not detain the Senate further now. I F:hall have more to say however in reference to other aspects 

of this case. Mr. LOGAN. Mr. President-

:Mr. EDMUNDS. If the Senator from Illinois will allow me, I will move an adjournment. 

Mr. HARVEY. Will not the Senator yield for a short executive ses- sion T 

Mr. ED~1UNDS. I will give way for the motion. 

Mr. HARVEY. There is a reason for it which I can explain to the 

satisfaction of every Senator present. 

Mr. ED~1UNDS. I withdraw my motion for that purpose. 

Mr. HARVEY. I move that the Senate proceed to the consideration 

of executive business. 

The motion was agreed to; and the Sflnate proceeded to the consideration of executive business. After two minutes spent in executive 

session, the doors wer<1 re-opened, and (at five o'clock and five minutes 

p.m.) the Senate adjourned. 

HOUSE OF REPRESENTATIVES. 

FRIDAY, December 15, 1876. 

The House met at twelve o'clock m. Prayer by the Chaplain, Rev. 

I. L. TOWNSEND. 

The Journal of yesterday was read and approved. 

CON6RATULATIONS ON NATIONAL CENTENARY. 

Mr. SWANN. I am clirecterl by the Committee on [l'oreign Affairs 

to present two reports which it is very necessary should be acted on at ouce. I ask that they be read. 

The Clerk read as follows: 

I am instructed by the Committ-ee on Foreign Affairs t~ report. to this Hoose a communication received in July last from the republic of Pretoria, South Africa,