i873. CONGRESSIONAL RECORD. 135 

Mr. CAMERON. When i came into the Senate this morning, rather 

iate, from my committee-room, I found the Senator from Maryland 

[Mr. HAMILTON] making a speech, a part of which I heard, and only a small part. I found my name mentioned, and I took the liberty of 

going to our excellent reporter and asking him to give me a copy of 

what was said by the Senator from Maryland in regard to myself. He 

did so, and I will read it if the Senate will allow me to do so. 1\Ir. CARPENTER. It is impossible for the Senator to be beard in 

the prevailing storm which is beating on the glass roof above us. I move that the Senate proceed to the consideration of executive busi- ness. The motion was agreed to; and the Senate proceeded to the con- sideration of executive business. 

After forty-four minutes spent in executive session, the doors were re-opened. 

Mr. FERRY, of Michigan. I move that the Senate do now adjourn. 

The motion was agreed to; there being, on a division-ayes 29, noes 22; and (at four o'clock and tweh-e minutes p.m.) the Senate 

adjourned. 

IN THE SENATE. 

F~.u', Marek 21, 1873. 

The Senate met at lialf past ten o'clock a. m. Prayer by Rev. J.P. NEWMAN, D. D. 

The journal of yesterday's proceedings wa.S read and approved. 

FINANCES~ 

M'r. FENTON. 1\ir. President, I offer the £oliow1ng tesolution: 

Resolved, That the Committee on Finance be directed to inquire what measlire or measures can be adopted by the Government which shall give to the country a cur- rency convertible into gold at the will of the holder, thus securing grea~r stability in the exchanges of trade, in the work of production and investment, and in the 

compensations of labor; and to report, by bill or otherwise, at the next session of 

Congress. 

Mr. CAMERON. I ask that that resolution lie over. 1\Ir. FENTON. Anticipating, under the practice of the Senate, that 

there might be some objection to the consideration of this resolution 

to-dav, I ask that it mav lie over and be printed. 

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

objection. 

CLERK OF CLAYTON INVESTIGATING COMMITTEE. 

J.Ir. WRIGHT. I offer the following resolution: 

Resolved, That the Secretary of the Senate be, and be is bereoy, authorized and 

directed to pay the clerk of the special committee of the Senate, appointed to in- vestigate charges against Ron. POWELL CLAYTON, the usual . per diem compen- sation of clerks to committees, from the 1st to the 31st day o£ March, 1873, inclu. 

siva. 

The r'3solution was considered by unanimous consent and agreed to. 

THE CONGRESSIONAL RECORD.· 

J.fr. SHERMAN. I rise to submit a resolution which I suppose will 

be adopted without objection, (and, if there be no objection, the Secretary can reduce it to forml) that the Public Printer be directed to furnish to each Senator two copies of the CONGRESSIONAL RECORD, com- plete and bound, at the end of this called session. I suppose there will 

be no objection to it, a-s it is necessary to have them. No Senator now has a complete file of the RECORD, (at least, I suppose other Senators are like myself,) and my resolution is that two bound copies be furnished to each Senator at the end of the session. 

Mr. CASSERLY. Bound in cloth f 

Mr. SHERMAN. Bound in the ordinary way. Let the Pnblio 

Printer have his own way of binding them. 

The VICE-PRESIDENT. The motion should go to the Committee on Printing, but that reference may be dispensed with by unani- mous consent. ' 

Mr. CAMERON. I object. I think it had better go to the Committee on Printing. 

Mr. SHERMAN'. Very well; let the resolution go to the committee, 

if that is deemed necessary. 

Mr. CAMERON. I am opposed to increasing our printing. We 

have no right to frank documents, and so we ought not to print them. 

The VICE-PRESIDENT. The resolution will be referred to the 

Committee on Printing. 

RULES L.l.MITING DEBATE. 

Mr. WRIGHT. I wish to inquire if the resolution I offered yester:. 

day does not come up. I have nothing to say upon it at all; I merely 

ask that it be referred to the Committee on Rules. 

Mr. MORTON. I suggest to my friend from Iowa that he allow 

that resolution to lie upon the table until after the CALDWELL case is 

disposed of. I think the resolution, if taken up, will only occupy the 

time of the Senate without result. I trust the debate on the pending 

question, the case of the Senator from Kansas, will be allowed to pro- ~ess until it shall be concluded. I see the Senator from New Jersey 

LMr. FRELINGHUYSEN] in his place who had the floor last night. 

Mr. WRIGHT. I certainly have no disposition on earth to inter• 

fere with the debate on the Kansas case. I have surely not given 

any evidence of such a desire. I did not suppose there would be any 

objection to the reference of this resolution. If debate is to follow, I 

shall not press it until the matter now before the Senate is disposed 

of. I simply ask that the resolution be referred to the Committee on Rules. If there can be any objection to that, if discussion is to 

follow, I shall not press it at this time. 

Mr. MORTON. Let me say to my friend that I think discussion 

will follow, from the fact that there are some members of this body 

who are so much opposed to any resolution of this character that they are unwilling even to countenance it by a reference. The Senator 

bas had some evidence of that already. I think debate will follow on this resolution, and therefore I call for the regular order. . Mr. WRIGHT. I understood the Senator from Ohio [Mr. THURMAN] to ask me the other morning why I did not offer such a rule as I 

proposed, and have it referred to the committee as a matter of course. I have pursued that very course, and supposed this proposition would 

be referred to the committee as a matter of course. 

Mr. THURMAN. No ; the Senator misunderstood me. t perhaps 

spoke in less perspicuous language than I am accustomed to use, but 

that was not my meaning. I said there was no necessity to make· that inquiry, that the Senator could offer amendments to the ruleshimself, and the nsnal practice in such a case was that they would 

go to the committee; but not necessarily that they would go there.- .E 

said then, if he offered them himself, we would see in what form the 

thing came, and if it came in a form that the Senate would not adopt, at all, that the Senate would not have anything to do with, of course the Senate would not take the trouble to send it to a commi~ 

tee. I do not wish, however, to take up time on this matter now. I 

hope the reglllar order may not be interfered with by this proposition, 

for which there is no pressing necessity. It can be considered after. the regular order is disposed of if necessary, or at the beginning of 

the next session, just as well as now .. Mr. SHERMAN. The motion is exactly in order, because during 

the morning hour the real thing that is pending is resolutions on the 

table, which are in the nature of morning business. 

Mr. THURMAN. Have we a morning hour at an executive sessi'ort 

like this f 

Mr. SHERMAN. i wish to state to my friend from iowa, witli 

whose object I sympathize heartily, and also to my colleague andother members of the Senate, that this matter of the adoption of a;· 

rule to regulate the order of business and dobate, it is true, cannot be 

disposed of at this session, but it must be disposed of at the next ses-· sian. 1\Iy colleague said the other day that we got along very well! 

during the last session. I say we did not. I say that more than two= 

thirds of the last session was consumed in unnecessary debate, and. 

the business of this country to-day suffers from the conduct of the· 

Senate during the last session. Why, sir, we were not able to con ... aider the great question of the currency and the public debt. My' 

colleague, who is opposed to all rules to cut off debate, suddenly 

sprang a motion to lay on the table one of the most important bills 

offered at the last session, without debate, without any opportunit.y 

to debate. A temporary majority can cut off debate at any time by a motion to lay on the table, and thus defeat important meastires.-

Everybody feels at this moment, every business man in the country 

feels, that the business interests of the country are suffering, because 

of the want of action at the last session of Congress one way or the 

other on that important subject. Our currency is depreciating daily 

in the transaction of business. 

Take, again, the case of Louisiana. There is a peopie that i do 

believe from the bottom of my heart are suffering under a govern-· 

ment that is irregular in many respects; and we could not dispose of 

the Louisiana question, a question involving the safety and character' 

of a State, and perhaps the peace of the country, because time waSunnecessarily consumed here in debate, not only on that question but 

on other questions. . . . . We did at the last session nothing that affects the great interests 

of this country. All we did at the last session was to pass the appro.: 

priation bills, and nothing could be got through of a general cha.rac.: 

ter unless it was thrust on the appropriation bills. 

Sir, I believe in the freedom of debate. I believe 1 can caU on Senators to testify that I have never endeavored to suppress debate 

where it was upon the subject-matter and conducted in the ordinary 

way. But, sir, I say that three or four or five members of the Senate 

may prevent the business of the country from being transacted; they' 

may defeat any measure. Take a case, in regard to which my col.: 

league will sympathize with me, the case of the steamboat law, whicli 

affects an interest of hundreds of millions of dollars of property in 

this country and the commerce of the great rivers. . _ . . Mr. HOWE. Mr. President, I rise to a question of order.- I do no£ 

know what the pending question is; but I rise to submit, not so much 

to the Chair as to the Senator from Ohio, that the line of remark he 

is pursuing I think tends toward legislation. If so, I certainly think; 

under the rule that was adopted la-st week at his instance, he is out 

of order to-day.. [Laughter.] 

Mr. SHERMAN.· Now, I am going to illustrate how utterly fnde'-· pendent of the rules of order any Senator on this :floor is. What do 

I care for your rules of order t On this very question I could make a· dozen motions upon which I could speak for two days if my physical strength would hold out. I could move to postpone the question a.nd 

discuss that. I could make the debate that I am now making on th& 

proposition to declare the election of Mr. CALDWELL invalid. I couldl 

make it in any way. I could talk about anything, andnomotioncall' 

prevent me. Why, sir, I may talk about the recent trouble in the• 
136 CONGRESSIONAL RECORD. MARCH 21, 

English Parliament ; and what rule is there to prevent me 'f How can you eay that that is immaterial to the question whothor ltfl'. 

CALDWELL should go out or not, or to the question whether we ought 

to have the previous question or not Y 

All .these things show the absurdity of clinging now to the old 

itleas that prevailed at the beginning of this Government, when the 

Renate of the United States was a little company of twenty-six men, a cabinet of States, holding secrot sessions, witbout rules, called 

upon to participate with the President in the discharge of the 

executive functions of the Government. Is it not absurd to apply 

the ideas which governed such a body in its conduct of the public 

business to a body of seventy-four members, sitting in open session, 

debating all the measures of the Government, and exercising a controlling influence upon legis~ation in every respect T 

While I heartily sympathize with my friend from Iowa in the 

endeavor to get some restraint or regulation of debate; something 

that will enable the business of this country to be transacted instead 

of being obstructed by unnecessary and pertinacious debate, I do 

not expect any action at this session, and I think it is hopeless to 

look for any now. I do not think my friend accomplishes much by 

attempting to do it at this session. I say this with due deference to 

his judgment, because I do not believe we can hold this session in 

permanence. Although the rules are continuous, y~t the committees 

fall wit.h the session and have to be renewed at the beginning of 

every session. This contest must be brought up at the next session 

of Congress, and then the question will have to be determined. 

I repeat that, under the present rules of the Senate, it is impossible for the Senate to attend properly to the business of this 

country. I have thought of three modes in which we can bring this 

matter to the test. First, we can commence at the beginnin(J' of the 

next session of Congress and introduce f!ome restrictive rules and 

stand by them until a majority of the Senate determine either to 

adopt some restraint on debate or to reject all propositions having 

that tendency. If they shall be rejected, it will be in the power of 

any six members of this body to put an end to the transaction of the 

public business by the Senate. I do not wish to say anything 

unkiml in regard to this matter or about Senators, but take the 

average of the time allowed for debate with seventy-four Senators, 

and give to the whole seventy-four the time that any one of half a dozen whom I could name generally occupies in debate, and you would 

not be able to pass a single bill. If you give an equal quantity of 

time to each Senator of the seventy-four Senators, and each one should occupy the time that some do, what chance would there be 

for the public business f 

I again repeat what I said some days ago, during the last session of 

Congress, that there is no parliamentary body in the world that bas 

not some limitation of debate. 

Mr. THURMAN. The House of Lords bas not. 

Mr. SHERMAN. It has; my colleague is mistaken. They have no previous question in the House of Lords, it is true, but the ministry 

say, "We wish a division on this question to-night," and it is bad. 

'l'hey have a rule which is more arbitrary than I would like to see adopted here. .I do not want any unreasonable limitation of debate. 

I do not want anything that will prevent free speech. I do not want 

any limitation as to time, or any strict rule of relevancy, but there 

must be some mode by which a. reasonable majority in this body, 

either one-half or two-thirds, shall be enabled to say that at such a time tHe public interests demand that debate on a pending proposiiion shall cease and that the vote be had. That ought to be done. 

There ought to be some rule, not harsh and arbitrary, not unreason- able, that should confine mem hers in debate, not within very narrow limits, but which should compel them to talk at least about or relevant to the subject-matter in controversy before the Senate. 

Why, sir, take the case of Louisiana. During the last session, ncar its close, when we bad up a bill about the agricultural colleges, a bill 

to which, it is true, I was very much opposed, an honorable Senator on this floor, one of the most able and distinguished members of this 

body at that time, got up· and led off in a debate on the Louisiana 

question, and it was continued for three days. When he was called 

to order, or rather when I politely suggested to him that be was not 

talking about the matter before the Senato, he wanted to know what 

difference that made; what rule there was in the Senate that re- quired him to talk to the subject-matterY So for two days be went on with a debate in regard to Louisiana that bad nothing to do with 

the agricultural colleges, or the grant of lands, or the topic that was under consideration. 

My colleague seems to think, and so does my friend from California, 

that this is a blow at the minority. The honorable Senator from Del- aware seemed to think that any limitation by rules was a blow at the 

minority. Why, sir, the minority always have more rights on this 

floor than the majority. I would not take away from them any right, 

but I would not allow a minority of the people of this country to 

subvert the Government, nor would I allow the minority in this body 

to control the majority iu the ordinary and necessary legislation for 

the country. There never has been a night session during my twelve 

years' experience in the Senate bnt that was totally unnecessary and a wa.steful expenditure of time and patience. During the time I have 

been here I never have seen an occasion where the fullest latitude of 

debate was not allowed in the day-time and in reasonable hours. 

Where the majority bad settled itself down upon the conviction 

that a particular measure in a particular form ought to pass, it was 

only able to pass it by holding us here in night sessions, wearying us, 

unfitting us for the discharge of business, creating confusion, strife, 

and contention, which ought not to have been necessary after the deliberate judgment of the Senate had been settled in favor of a particular measure. Was it necessary, to preserve the rights of the minority, 

that that should be done f Is it supposable that the Senate would 

arbitn.rily arrest free and fair debate by the minority! Not at all. 

But, sir, this rule is necessary, not only for the minority, but it is 

necessary for the majority also, because sometimes debate goes on to an unreasonable length. If we had a rule that allowed two-thirds of 

the Senate to say when debate should stop, do you suppose that rule 

would be abusedf Under the Constitution two-thirds can expel a member for any cause they doem proper. Is it to be supposed that 

under a rule which required two-thirds for its application, anything 

harsh or arbitrary would be done¥ Not at all. 

I say, therefore, that while probably it is useless for my friend from 

Iowa to press this matter at this session, the public interest demands 

that some new rules in regard to debate and the order of business 

should be made. 

Mr. MORTON. Mr. President, have I the right to call for the regular order! 

Mr. THURMAN. I hope my friend will allow me a single remark 

personal to myself. 

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

Senator from Iowa to take up his resolution. 

Mr. SCOTT. Mr. President, whatever may be our opinions as to th~ 

propriety of adopting these rules, it is perfectly obvious that no ac- tion can be had upon them at this session, and I rise in the interest 

of the dispatch of business, intending to make a motion, if it be in 

order, which will test the sense of the Senate upon the propriety of 

taking up further time in discussing this question about the rules. 

Now, suppose the rules as offered be referred to the committee; if 

they take no action at this session, the whole subject dies. If they 

do take action and report upon them, it is perfectly evident that the 

debate which will ensue will be of such }t}ngth that the Senate will 

not stay here to consider the subject at this session. So that in no point of view do we make anything by either referring this resolution or having a report upon H. 

Now, sir, in view of what was said by the Senator from Indiana 

who, as chairman of the committee reporting the resolution now regularly before us, has charge of it, I think it is due to him that we shall waste no further time in discussing questions upon which 

there can be no action at this session. I think it is due to him that 

every hour of time should be taken up in discussing the question now before us; and with that view, if it is in order, I move to lay 

upon the table the motion to take up these rules. 

1\fr. THURMAN. I ask my friend to withdraw that motion for one moment until I can notice a remark made by my colleague. 

Mr. SCOTT. Will the Senator renew it f 

Mr. THURMAN. Yes, sir. 

Mr. SCOTT. Very well. 

Mr. THURMAN. JI.Iy colleague seemed to rebuke me, (I am sure be did it in no unkind spirit,) because I moved to lay the finance bill, 

if it may be so called, on the table. My colleague must recollect that we debated that bill, I think, more than a week. I may be mistaken ; 

but that is my impression. But one thing he certainly will remem- ber: that before making that motion, on the morning of the day on which it was made, I went to him and asked him if he had any objection to my makinJ! it. !Ie s~id, "Do not make it now; let the debate run on this day." Tlion in the afternoon I went to him again 

and asked him if he had any objection to my making it, and he said 

not after he had addressed the Senate. Thereupon he did addrees 

the Senate with great force, and great power, and great earnestness; 

and it was not until he had closed his remarks that I made the motion as a test motion. 

I do not think there was in that any cutting off of debate, or any 

injustice to my colleague, or to the committee, or to the country. 

The Senator from New York who sits nearest me [Mr. CONKLING] 

declared afterward that the fute of that bill had been perfectly well 

known for two days in the Sena~e, and yet we had gone on and debated the bill after it was known for two days that it could not pass. 

I did not know that two days before the voto was taken on the bill, 

I thought the debate was a very instructive debate. Leaving out 

what I said, it was very instructive to me, and I listened to my colleague's views with the greatest interest and pleasure, as I did to 

those of all others who spoke on that subject; and I think, so far as I am concerned, I was very much benefited by what I heard on both 

sides of that bill. Bnt I am sure there was no intention on my part to 

cut off debate, nor did I think anybody wanted to debate the bill further at the time I made the motion to lay on the table. 

This is all I desire to say now, because, although I should like to 

reply to the views of my colleague on this resolution and the proposed 

roles, I do not wish to take up time. I concurwitlt what the Senator 

from Pennsylvania says, that we ought not to take up a matter which we cannot dispose of, and therefore, according to my promise, I renew the motion to lay the motion to take up the resolution on the table. 

Mr. WRIGHT. I do not wish to make a speech, hut I ask the Sena.-

tor to withdraw the motion for a moment, in order that I may make a suggestion. 

Mr. THUR:UAN. If the Senator from Pennsylvania says so, I will 

withdraw it. 
1873 .. CONGRESSION.A.L RECORD~ 137 

Mr. WRIGHT. Havjug offered these rules, I think it)s due to me that I should be allowed to say a word. 

Mr. SCOTI. Perhaps my friend will not renew the motion. 

:Mr. WRIGHT. I simply wish to make a suggestion. 

The VICE-PRESIDENT. The Chair wishes to state to the Senate 

that he cannot recognize any conditionaJ. withdrawal of a motion to 

lay upon the table. No Senator has any right to make any bargain 

of that kind. 

Mr. SCOTT. In justice to the Senator who offered these rules, I 

will withdraw the ruotion for the present, but will renew it after he 

shall have concluded. 

Mr. WRIGHT. I was about to suggest that I very much doubt 

whether a motion tp lay on the table be in order, for I understand 

the motion is to lay the motion to take up on the table, and I understand also that the resolution came up as a matter of course, without 

any motion to t ake it up. However that m3:y he,~ wish t<_> inq~e 

whether a motion to postpone the further cons1deratwn of t.b1s subJect 

until the first day of the next session would be in order. 

'I'he VICE-PRESIDENT. That would be in order. 

Mr. WRIGHT. Then I make that motion. Instead of the motion 

to lay upon the table, I move to postpone the further consideration of 

this subject until the first day of the next session. 

J.lrlr. DAVIS. Will not that be in the nature of a special order f 

The VICE-PRESIDENT. The Chair thinks not. The question is on the motion of the Senator from Iowa. 

The motion was agreed to. 

REPORT.rnG .AND PRD\"T~G OF THE DEBATES. 

Mr. Al.TIHONY. I ask permission to make a report. .At the last 

session of Congress the Committee on Printing on the part of the Senat.e were instructed, in the absence of any contract, which there is no authority now to make, to provjde for the publication of the debates 

of Congress. The committee have made an arrangement with Mr. 

Dennis F. Murphy, who bas long been the head of the corps of report- ers of the Senate, to continue the debutes in the wuyin which you see they are now pn blisbed; and, in .order that the 8enate may know what 

the committee have done, I ask the Secretary to read the resolutions 

which the committee adopted, and under which Mr. Murphy is acting. 

The VICE-PRESIDENT. The resolutions will be reported. 

The chief clerk read as follows : 

RPsolved, That D. F. Murphy is hereby appointed Official Reporter of tho Senate. Resolved, That the Secretary of the Senat-e be directed to pay to the Official Reporter of the Senate for reporting the proceedings at tho present session, out of 

nny money that may hereafter be appropriated therefor, at the rate ?f $1.0~ .Per 

thousand ems, printers' me&auremont, and twenty per cent. thereon m add1tion, (being the same compensation heretofore paid for reporting the proceedin~s of 

the Senate for publication in the Daily Globe;) the accounts to be made np from 

the published debates in tho Co:xGRESSIONAL RECORD, and certified by the Congressional Printer. 

Mr . .ANTHONY. This it>'the precise compensation that ha-s heretofore been paid. It has always been customary ever since I have been 

in Congress, I think, and it has now acquired the force of law, to pay an additional compensation per session of $800 to each of the report- ers. The appropriation for that has been made for the coming year, 

but it is made to the "reporters for the Congrea:tional Globe." The 

committee, as part of the contract, have stated to the Reporter that 

this additional amount will be included in the compensation of himself and the usuol number of assist~nts who have heretofore received it. 

The committee have also instructed Mr. 1\Iurpby to be prepared at 

the opening of the next session with his reporters to go on with the 

debates until further orders shall be issued, if at a.ll. 

With regard to the publication of the REcoRD, the committee have 

embodied in the resolution which I ask the Secretary to read their 

instructions to the Congressional Printer. 

The chief clerk read as follows : 

.Resolved, That the Congressional Printer be directed to have the same nnm ber 

of the CONGRESSIONAL RECORD for tho present session printed as was printed of 

the Globe for the last session, with a suitable index:, to be prepared under tho direc- tion of the Committee on Printing, and that they be distributed as the Globe for 

the last session was distributed. 

l\Ir . .ANTHONY. The only variation from that is the file copy, 

which the committee have instructed the Congressional Printer to 

place on the desk of each Senator. 

ELECTIO~ OF SE:X.A.TOR CALDWELL. 

that bas been before the Senate since I have been a member. If it were not my purpose to abstain from a speech, I certainly would have 

sought another occasion than this, following the exhaustive and eloquent disquisition of the Senator from New York, [Mr. Co:xKLI~G,] 

the impressions of which are still fresh in our memories . .And first I want to say a few words relative to this and other investigations with which we have been engaged, and to those that are looming up before us in the future. In my opinion this is, in its or- ganization, the best legislative body in the world, and it will continue 

to be such until we adopt the prevjous question, as just suggested, 

and then I fear its power will begin to wane. While that is so, it is 

also true that, except when the Senate acts as a court of impeachment, it is the poorest judicial tribunal in the land. When acting as a court of impeachment, the charges against the accused are presented, and he knows to what he is to make answer, and knows that 

he is to be called upon to answer nothing but what is charged. The 

trial takes place; the witnesses are examined by the managers on the part of the House and by the counsel of the accused before the 

court. Our consultations are with closed doors, with no reporters 

present, so that there is no pride of opinion to prevent the correction 

nf a hastily adopted error. But in investigations like that before us the case is widely different. A Senator is put on trial without specific charges or presentment. He may enter the ordeal ~ try the question of fact whether 

be did or did not own Credit Mobilier stock, and the judgment may 

be, without any fault of the committee, and to their pain, and by mere force of the nature of the investigation, expulsion for a crime which 

must send an iron through the heart of an honorable man. .Another Senator enters the ordeal to try the question whether he 

has or bas not given a bribe of $7,000 to a man specifically named, 

and while that question is undetermined, he is, on the application of one individual out of the forty millions iu this land, and be an enemy, 

called upon to answerthlrteen distinct charges of bribery, with his wit- nesses eighteen hundred miles away, and this, too, in a land that 

boasts a Constitution provjding that no person, not even a Senator, 

shall be held to answer for an infamous crime except on a presentment or indictment of a grand jury, and which also provides that trials 

of all crimes, e:x:cept in cases of impeachment, shall be held in tho 

State where the crimes shall have been committed. · It may be said that these investigations are at the instance of the 

party accused. That matters not. The maxim of the law is not that 

consent does not give jurisdiction, but that consent cannot give jurisdiction. Suppose two Senators consent that we shall try au ejectment case; does that give us jurisdiction 7 I think it if:! time that 

the Senate consider before entering so freely upon these investigations. 

But further, Mr. President, the tribunal does not see nor hear the 

witnesses, so as to judge of their credibility or capacity, and are thus 

deprived of the one consideration that makes trial by jury valuable. 

.All witnesses stand before us on a dead le•el; and this is done, with a Constitution provjding that all trials of crimes, except impeachment, shall be by a jury! And the consultations of this court, if 

such you may call the earnest appeals of counsel, are before the 

public, with reporters present heralding the slightest suggestion of an opinion that is made, so that when the intimation of one's 

vjews is once made, it is considered indecision or pusillanimity ever to waver or part from it; and those rules of evidence, the crystallization of the wisdom of centuries, are disregarded by counsel and by 

committee, because they both know that any objection to evjdence, or any ruling that it is incompetent, is looked upon as a BuppreBsio 

ve-ri; and they fear the quick and ready verdict of the conn try 

against the party by whom the objection is interposed. A worthless 

witness testifies to some hearsay allegation, which, perhaps, some one equally worthless has whispered in his ear, and perhaps not; 

and unless the Senator t!lkes the stand and on ills oath swears that 

the allegation is untrue, it is accepted as admitted; and if be does 

take the stand to swear to its untruth, be lays his whole life, his 

business, his private affairs open before the country. Why, 1\fr. President, if yon should attempt in thls land to establish an inquisition 

that should pinch a man's thumb to make him disclose his private 

business, before it would be submitted to the streets would rnn with blood ; and yet this mode of investigation applies the thumb- screw to the rep.utation, not to exact evjdence, but to compel one to 

contradict that which is no evidence, and should never have been 

The Senate resumed the consideration of the following resolution, admitted; and then the occasion is improved by an adversary to 

submitted by Mr. AiORTO~ on the 6th instant: pry into affairs that are. private, and this, too, in a country that 

.Resolved, That ALEX..U.""DER C.lLDWELL was not duly and legally elected to a. seat boasts of a constitution which declares that a man shall not be dein the Senate of the United States by tho legislatnroof the State of Kansas. prived of his liberty except by-due process of law. Sir, there is no 

The VICE-PRESIDENT. On this question the Senator from New liberty where privacy is unduly or unlawfully invaded. It is the 

Jersey [Mr. FRELINGHUYSE.N] is entitled to the floor. - poorest tribunal in the land, and yet, Mr. President, is it not good 

lli. l!,ERRY, of Connecticut. If the Senator from New Jersey will enough for all the purposes for which it was intended'? 

allow me one moment, I have an amendment to offer to the pending The legislative, executive, and judicial powers arc vested in distinct 

resolution, which I think should be offered before the debate pro- departments. Maintaining the majesty of the law by the administraceeds further. It is to strike out all of the resolution after the name tion of justice is not intrusted to us. That belongs to the judicial 

"ALEXANDER C~WELL," and insert, "be, and he hereby is, expelled power. If a Senator is charged with murder, forgery, or conspiracy, 

from the Senate of the United States," so that, if amended, the res- and, while out on bail, takes his seat here, may we, without presentolution will read: ment, away from the vjcinage where the offense was committed, with-

.Resolvr.d, That ALEXA... mER CALDWELL be, :md be hereby is, expelled from tho out jury, without seeing or bearing a witness, try him f No one will 

Senate of the United States. say so. May we under the same circumstances, then, try him for tho 

Mr. FRELINGHUYSEN. :Mr. President, I do not rise to make a infamous crime of bribery 'I Are we to <lothis nnder the simple power speech, but to submit a few suggestions in reference to the pending of judging of the election of a Senator 'l Would not that amount to a measure, which is one of the most important and the most delicate :: usurpation of judicial functions f May we try these offenses under the 
138 

authority given us "by a vote of two-thirds to expel a member f" 

Shall we, under this provisi<•n, try in the manner we necessarily must, 

if we try at all, infamous crimes involving the severest of penalties, 

and determine issues so nicely balanced that the committee which we have substituted for the grand jury stand three to four f Does not 

the provision of the Constitution rather mean that when disreputable 

conduct or crime is so patent or acknowledged, or judicially established, that fifty men out of seventy-four so plainly see it that a trial 

would be a mere farce, that then the Senate may by a vote of two to one purify itself by c_utting off the polluting member T I think so. Mr. BAYARD. :May I ask the honorable Senator from New Jersey, 

does he bold that it is not within the power of the Senate or the 

House of Representatives to expel a man for any other offense thau 

that of which he shall have been judicially convicted 'I 

Mr. FRELINGHUYSEN. Mr. President, I will give my friend my 

views on that subject presently. I will come to it in the course of my 

remarks. 

Mr. BAYARD. The honorable Senator had said as much just now, 

and I almost doubted my ears when I heard it. That was the reason I put the question for information. 

Mr. FRELINGHUYSEN. What I said was that the Constitution, 

when it said that the Senate may expel a member, did not intend 

that we should enter into these trials aud assume judicial functions; 

but it meant that where the disreputable conduct or crime was patent, 

admitted, so judicially established, and was so clear that fifty men out of seventy-four, or two-thirds, saw it, then they might by a vote 

exclude that member. 

Mr. BAYARD. That was the reason I asked. Hearing the learned 

Senator state that the facts should be patent or a~mitted, or judicially 

determined, I thought I would ask him whether he considered that a judicial determination was necessary to give the Senate powerto expel. 

Mr. FRELINGHUYSEN. Mr. President, an intelligent judge with 

twelve plain men as jurors would in three days have determined this 

question in the State of Kansas, the laws of which State, rather than 

those of the United States, Mr. CALDWELL has violated if he be guilty, 

better than we can ever determine it; and let me add that when the 

.record of that conviction should have been presented here, it would 

have established a prima-facie case against him invoking and demanding our action. . But, sir, there are other national considerations why this should not 

be the forum for these trials. The trickery and fraud and corruption 

of every nook and corner of this land-and iniquity doe.s prevail here, as it will in every land until the millennium-are dragged here to the 

Capitol, and paraded and flaunted and magnified by the exaggerations 

of eloquence, and laid before the public as its daily food, until it is 

strange if the people are not taught to despise their law-makers and 

contemn their laws. This is done until these proceedings become a stench in the nostrils of the people, until the key·note of public 

momls is lowered, and until the great Republic becomes a reproach 

among the nations of the earth. 

I submit that the broad escutcheon of the nation should not be 

stained and soiled, polluted by the despicable trickery and practices 

of every little locality. Let them bear alone their disgrace, until in 

deep humiliation they shall learn that the paths of virtue are alone 

the paths of pleasantness and of peace. Not only is the nation charged 

with the local misdeeds that actually happen, but with all the false 

charges that malignity and disappointed ambition may concoct. In one ofthe cases to which I have alluded, there were thirteen distinct chan~es of bribery, which your committee unanimously reported were clearly unsustained. I claim, sir, that we are bound out of regard to 

the good name of our country, while not screening the vicious, to see that the nation is not unjustly condemned, and even to cast the mantle 

of patriotism over faults the parade of which does no service. 

Again, sir, by perverting the Senate of the United States into a court 

of general jail-delivery, we seriously interfere with the discharge of 

those duties relating to great national questions which the welfare 

of the country demands. Aud further, I remark that the position of 

Senator of the United States is one which heretofore has been coveted. 

Six years is a long time for ambition to keep itself waiting. Let it 

be understood that the Senate is always open and ready to entertain 

any charge that may be made by any one, and that we are to try the 

question in the manner we know these investigations must be con- ducted, and, I think, we are courting such a condition of things as will 

destroy that independence and that security which it was the great care of the Constitution, by ita various provisions directed to that end, 

to confer upon the Senate. Better, far better than imperil that independence and security, let the wheat grow with the tares until the 

harvest, when the States shall enforce their laws, shall come, than to 

destroy both wheat and tares by this unskillful husbandry. 

Let no one think that the propriety of his conduct has been such 

that he is impregnably secure when the rules of evidence and the 

proper organization of judicial tribunals are broken down. Those 

agencies were created as much for the protection of the innocent as for the conviction of the guilty. As another has said, one may be so popular to-day that the people cast garments and garlands before him, 

and to-morrow he is the victim for the cross: "Crucify him! crucify him!" I object to the breaking down of the barriers of rules of evidence, a justly organized judicial tribunal, and the safeguards which our Constitution has cast around the trial of its citizens for crimes; 

and I claim for a Senator of the United States only the rights that 

belong to the humblest citizen of this 11.nd; but I claim them all. 

MARCH 21, 

Again, Mr. President, there is no limitation to these charges; there 

is no statute of fence. Away from their witnesses, without the advantage of the constitutional tribunals of the country, the rules of 

evidence unenforced, long aft.er the event is charged to have occurred, 

when the evidence is lost or memory become indistinct, and under 

circumstances in which you could try no one else, the impression seems to prevail that Senators may be tried. 

I have said this much to call the attention of the Senate to the 

general subject of investigation. What I have suggested may have 

little to do with the case before us, for in that case the Senator admits the paying of $15,000 to induce a candidate to withdraw from 

the canvass. That fact needs no investigation. Permit a. few words as to this particular case. I do not believe that we are an assemblage of ombassadors from 

the States, but we are a. co-ordinate branch of the national legislature. Under the old Confederation a State might send from one to seven delegates, and each State had but one vote. That was State 

representation. Now, it is true that, in order that the State may have a representation in the national councils without regard to populn.-

tion, each State has the same number of representatives in the Senate; 

but when here we vote as individuals, as much so as do the Representatives in the House. We are not Senators of Pennsylvania or Rhode Island, but we are, when elected and sworn, Senators of the 

United States. For the purpose of removing the election a little further from popular influence, Senators are elected, not by the legislative power, for that consists of the legislature and the governor, but are elected by the legislature. When a. Senator presents his certificate here, signed by the governor, to the fact of his election, be is, 

primajacie, entitled to his seat. That has been frequently decided. 

Being seated, he is entirely beyond the control of his State, but can be unseated for any cause that makes his election void, as a discovery 

of the miscount of votes, fraud in counting them, duress, possibly deception, or discovering a want of the constitutional qualifications. 

Can his election be declared void for bribery f 

Before I listened to the exhaustive argument of the Senator from 

New York, [Mr. CONKLING,] I for my own purposes wrote this short 

sentence, and I believe it true and shall act upon it: " If the elect- ors were legal voters, and voted freely and understandingly, the 

election is valid." I am not likely to change this conclusion after 

listening to the argument to which I have alluded. You cannot 

render an election void by attacking the motives of the legislators. 

You cannot prove that one legislator voted for a Senator because he was his cousin, and that another voted for him in order to get him 

out of the way, that he might have his law-practice, and that another 

voted for him because be was satisfied he would aid in obtaining a bounty for his railroad. It does not follow that the legislator would 

not have voted for the Senator without any of these considerations. 

The question of motive is beyond our reach. 

Can you declare the election void for bribery f I do not know that 

I have anything to add to the argument which has been made on that 

point. I can only state the one consideration upon which I made up 

my own conclusion on this subject. Suppose a Senator, elected in 

joint convention by one majority, and it is clearly proven that one member who voted for him was bribed so to vote by an enemy of the 

Senator elected. That might readily be. That enemy might bribe a legislator so to vote, in order that the Senator would be out of the 

way as a candidate for governor. He might bribe a legislator to vote 

for the Senator for the very purpose of eventually defeating him ; for 

if the doctrine be true that the bribery of the majority renders the 

election void, this would be a. very effectual mode of defeat. It seems to me that to hold such an election void would be pladng a premium on bribery; that it would be giving it the reward of sure success; 

and I cannot conceive that any Senator can hold that such an election would be void. 

If, however, that election would not be void, then bribery pm· se does not render an election void, for it makes no difference from whom 

the bribe comes, so far as relates to the influence of the bribe on the vote 

of the legislator. Do I, then, mean to say that a Senator, if he is the one that gives the bribe, can in this manner secure his election T What I mean is, that it is perfectly clear that his being guilty of bribery is a question that goes to his character, and not to the fact of election, 

and is to be treated under the power of expulsion. 

If, then, bribery does not render an election void any more than it 

renders a charter or a law void, is corruption to continue to run riot 

in our legislatures T No, sir; it is the law of the State that the legislator violates, and the States must vindicate their laws ; must indict 

and punish; and, if they do not, then let the General Government, if 

it has the constitutional power, as perhaps it bas so far as bribery 

relates to a United States Senator, enact laws and enforce them in the 

Federal courts of the judicial districts of the country. If the Federal Government has no such power, it certainly has not power to 

reach bribery by declaring the authorized acts of independent States 

to be void. Again, the question is asked whether the guilty Senator 

is to go unpunished t No; he is subject to the criminal code of his 

State, and is subject, too, in the manner I shall indicate, to the power 

of the Senate on the question of expulsion. The Senate" by a vote of two-thirds may expel a member." Such 

is the brief constitutional charter. of our power. There is no con titutionallimit whatever to our discretion, and we naturally seek for 

direction. Let us, then, remember that we are not charged with the 

administration of justice. If a crime is brought to the attention of a 
1873. CONGRESSIONAL RECORD. 139 

grand jury, they must act. If a case is presented to a court, it mus~ 

acquit or condemn. We have no such imperative duty. If there be a case that is patent, acknowledged, or judicially determined, so as to 

convince two-thirds of the Senators, we may expel, if we think the 

purity and dignity of the body demand it. We do not by any means give our sanction to the conduct of every Senator we do not expel. 

For what may we expel t There is no sure chart or compass, in an- swering tha-t question, to bring us to the safe haven of truth. The 

best that we can do is to suggest rules to guide our uncontrolled discretion. 

Firat. We may expel for disreputable conduct during the period one is a Senator, whether such conduct is connected with his senatorial 

duty or not. But when, while Senator, this disreputable conduct is 

not connected with his senatorial duty, the ground for expulsion should 

be laid by a record of conviction. There are many offenses that might 

be suggested for which Senaoors would freely give a vote for expulsion, 

yet they are offenses for which they would hesitate long before subjecting the accused to such trial as can be here given. ·when the offense, 

be it homicide, forgery, or bribery, is once judicially established, then the Senate will take action as to it. 

Secondly. ·one may be e:x:pelled for disreputable conduct in the 

act of obtaining an election. But if that conduct is a crime, and 

the Senator asserts his innocence, he is, aa other men, entitled to a constitutional trial in the State where the crime is alleged to have 

been committed, and this, because the Constitution declares in effect 

that every person shall have that right. I am aware that we are not bound by these constitutional provisions. I know that when we are exercising the power of expulsion, then we are putting forth a high prerogative power. We should, however, in the exercise of 

this discretion, extend the same protection to Senators as to other 

men, and be guided by the provisions of the Constitution. Let us do to others as we would that they should do to us. I now ask 

these Senators individually whether if you, or you, or you, were charged with bribery in your respective States, you would be willing 

to have your cause tried, involving a reputation dearer to you than 

life, and involving, too, the good name of your children-you would 

be willing to have that cause tried in the State of Kansas, eighteen 

hundred miles and more away from your home and from the vicinage 

where the crime is alleged to have been committed-away fr-om the 

locality where the character of the witnessoo is known-and this 

without an issue being formed and without court or jury t No; there 

is no Senator that would not cry out against such an injustice being 

brought to his door. By my vote, air, I shall administer to others, 

whether there is a storm of public sentiment or a calm, the same law 

and the same justice that I claim for myself. 

Thirdly. It may be that a Senator is so clearly guilty of misconduct 

connected with the obtaining of his office that it would be a mere farce to require a trial. Mallory, Davis, Toombs, Clement C. Clay, 

and others left their places in the Senate to join the rebellion, and 

their seats were declared vacant. 

Mr. CALDWELL admit!! that in the act of gaining his seat he paid 

$15,000 to Carney, a. candidate, to induce him to withdraw. Of this 

fact there is no doubt. There is no need of n. trial. This act, as stated 

in the memorandum relating tow hat occurred between CALDWELL and 

Carney, was not a crime, and the national legislature, consisting of the 

Senate, the House of Representatives, the President, cannot now make 

it a crime, because the Constitution provides that Congress shall paM no '1X post facto law, and, further, because the Supreme Court of the 

United States, fn the case of Cummings vs.-The State of Missouri, 4 

Wallace, 277, in treating of a test-oath enacted after the war, and providing that one who had been engaged in that war for the rebels 

should not hold certain offices, decided that law to be ex post facto and 

to be void. But CALDWELL's paying his money to Carney for him to 

retire is an admitted fact, and it is connected with his obtaining his 

senatorial office. Mr. President, I cannot reconcile it, notwithstanding the able argumentofthe Senator from New York, with my sense of the dignity of this Senate that we should in any manner approve 

of that transaction. 

The question is, whether this transaction, not being a crime, is such a disputable act and so connected with his senatorial office that it 

should be followed in the middle of the Senator's term by expulsion. 

It is to my mind a highly disreputable act and is connected with his 

senatorial office. The committee to whom this subject was referred, 

not for the purpose of making the passage of their resolution more easy by requiring a mere majority instead of a two-thirds vote, (for to 

suggest that would be attributing to them an unjust and unworthy 

motive,) but the committee to whom this subject was referred, four 

out of seven, have told the Senate that they ~bought a much milder 

punishment than expulsion was all that was demanded by this case, 

while three out of the seven thought that even the recommendation 

of the committee as made was too severe. The real qnest.ion, then, that we are called upon to determine is, 

whether this is suoh an offense as demands expulsion. 

The conclusion, then, to which I have come in brief is this : 

First. I shall not vote to declare the election void, because I do not 

believe it void. 

Secondly. I shall not vote that he is guilty of briberyJ because, as the 

Senator denies the charge, I believe that he is entitled to a constitutional trial. If the law does not make provision for such trial, pa.ss a statute making it the duty of the district attorney to institute proceedings in the district where the offense w~ committed, and try the 

question of criminality. Let a Senator, as other men, have a fair 

trial. 

Thirdly. Mr. CALDWELL admits the paying of $15,000 to a candidate 

to withdraw, which, while it was not a crime, and cannot be made a crime by any ex post facto proceedings, still was, in my opinion, highly 

disreputable and was connected wi~h his senatorial office. Whether 

it is in that degree disreputable as to require expulsion, I will signify 

by my vote. 

Mr. HOWE. Mr. President, I did not, until a very late day, int-end 

to say anything on thi.~ case. I do not now intend to say more than a very few words. It has been very much my habit to have my colleague explain my votes ; but, for some unexplained reason, he has, on this occasion, neglected that duty. 

Mr. CARPENTER. I want to say to my colleague that that is be- cause he does not always follow the explanation; he does not need 

the disposi ~ion. 

1\Ir. HOWE. And I am not sure but that I ought to make an effort 

to explain my own vote. 

I agree with what was said the other day by the Senator from Ohio, 

[Mr. THURMAN,] that not alone the Senator from Kansas, but that we all are on trial. The Senator from Kansaa alone stands at the bar of 

the Senate; but the Senate stands at the bar of history. We must 

pass judgment on him; posterity will paaa judgment on us. The question, and the onlp question, I propose to comment upon is 

that presented in the pending resolution. That resolution declares 

that ALEXANDER CALDWELL waa not legally and duly elected. Now, 

I cannot persuade myself to assent to that proposition. I have not 

yet been persuaded to consent to it. To my mind the evidence is 

overwhelming that he waa legally and duly elected. No one denies 

that Kansas waa a State competent to elect a Senator. Nobody de--

nies that she had a legislature duly commissioned to make that elMtion. Nobody denies that her legislature, at the proper time and in 

the proper place, proceeded to do that precise thing. Nobody denies 

that in that legislature, at that time, and at that pla"0e, a large ma- jority of all t.he votes given were gi>en for Mr. CALDWELL. Nobody 

denies that the State supplied him with the ordinary and usual mu- niments of his title. 

All these concurring facts seem to argue very strongly an election. 

Perhaps it cannot be said that they are conclusive of an election. 

Under the Constitution I suppose the Senate is the final and supreme 

arbiter of such elections. But even that assurance, in my judgment, even that last assurance, the Senator from Kansa.s holds as much a-s any Senator on this floor. When he laid his credentials before the 

Senate the Senate promptly . recognized him. The Senate administered to him its oath ; the Senate awarded to him his seat. For 

two years, in the face of the Senate, of the country, of the world, be 

has worn the prerogatives of a Senator, and if he has done this without election, by the permission of the Senate, as he has done it, it seems to me that the Senate itself is not without sin in this regard. 

And yet the Committee on Privileges and Elections ask the Senate 

to revise the decision made two years ago and to reverse it, to declaro 

that the man who was then acknowledged by the Senate to be elected was not elected. As Luther appealed from the Pope uninformed to 

the Pope informed, so the Committee on Privileges and Elections seem now to appeal from the judgment of the last Senate, darkened, I suppose, for want of Kansas counsels, to the judgment of this Senate, 

illuminated by the corrnscations of political and personal malignity 

found in this volume, [holding up the report of the committee with 

the testimony.] 

Mr. President, when we consider how harmonious the Senate was on this question of election two years ago, when it was ignorant, and 

how distracted it is to-day on this same question, when it is supposed 

to be informed, it suggests a painful doubt as to whether information 

is really a good thing to have. 

Mr. MORTON. What caae does the Senator refer toY 

Mr. HOWE. The case when Mr. CALDWELL was admitted to his 

seat by the Senate. I think that was the judgment of the Senate. I 

think it ought not to be reviewed; it ought not to be reversed. All 

that is known to-day was known then. All may not have been 

known to the Senate two years ago that is known to the Senate to-' 

day, but all was knoW"n two years ago which is known now. Mr. MORTON. What does the Senator mean by saying it was "known Y" Known to whom t 

:Mr. HOWE. Known to those who tell it now. Mr. MORTON. To the witnesses f 

Mr. HOWE. Known to the witnesses. I do not remember exactly 

what the synonym of "known" is, and therefore I cannot very well 

explain what I mean by that word "known." I do not think the 

Senator really needs an explanation. This, however, perhaps I may 

say by way of interpretation: that those who reveal facts to-day upon 

which we are asked to say that 1\!r. CALDWELL was not elected are those who concealed the same facts two years ago, when the Senate 

did say Mr. CALDWELL was elected. Is it so, then, that that aggregation of spite which seems to constitute the politics of Kansas in 3. 

great meaaure is the volcanic fire by whose light the Senate must bo 

guided Y Can we only walk when that mountain belches f When it 

smolders must we grope and stumble Y 

Mr. President, suppose we now retry the question of Mr. CAI.DWELL's election, and suppose we again a.ffl.rm it; we must retry i t. again next December, 1 suppose, if anybody else assails it, if anybody else comes here with a. new suggestion, or a new fact, or a new 
140 CONGRESSIONAL RECORD. MARCH 21, 

allegation which impeaches it. So often as the fact of an election is 

assailed, so often under thls rule we must try the question, and so often as we try it wo must decide it by a majorityvote·of the Senate. 

Where then sleeps, what has become of that article in your Constitution which says that a Senator shall be elected for six years f 

Mr. MORTON; Suppose he dies, does that break the Constitution f 

Mr. HOWJl. No, sir; that would not violate the Constitution. 

Or, if it would, dea th is not subject to the Constitution of the United 

States. It does not follow, because death may shorten a senatorial 

term, that a majority of the Senate may. [Laughter.] But I ask 

again, in spite of the suggestion, what has become of that command 

in your Constitution which says a Senator shall be elected for six 

years! It is breath, and nothing but breath, if the fact be that he 

holds only until a majority of the Senate can be found to say that he was not elected. He holds during the pleasure of the Senate. That 

is the duration of his term. 

Mr. President, this resolution declares that Mr. CALDWELL was not 

elected. If the form of tho resolution bad been that he shall be expelled, we all understand that his sen,t would not be vacated unless the reso- lution in that form should receive two votes to every vote given 

against it. In its present form we understand that the resolution 

will pass if one vote more than a majority be given for it. And, if 

it shall receive one vote more than a majority, and shall be enforced, 

what will become of the Senator from Kansas f He will be excluded 

from his seat; he will be thenceforth "cut off from all connection 

with the body." That is precisely the definition which the lexicographers give of "expel." He will be in fact expelled. The Constitution has undertaken-the men who framed it I believe made an honest attempt-to reserve that power of expulsion, not to a majority 

of the Senate, but to two-thirds of the Senate. It seems to me it was a most idle effort, a vain effort on their part, if precisely the same thlng could be done by a majority, simply by changing the form of a 

resolution. 

I do not deny that the Senate is the judge of the election of its 

members. I admit that. But I think that is a power by which the 

Senate regulates the admission of its members, not a power by whibh 

it controls the continuance of members in the body. It seems to me that, when that power is once exerted upon an individual, it is ex- hausted upon that individual. It is a power, as I think, over one who 

seeks membership, and not a power over one who has obtained membership. 

In the House of Representatives this same power conferred in the sa.me words must of necessity be a different thing, and for this rea- son: the House of Representatives once in two years ceases to exist. 

:Membership is awarded in the House, not by the House, but by an officer of the House. That admission to a seat, conferred not by the 

House, but by an officer of the House, cannot deprive the House of 

its constitutional power to judge of the election of the man so admitted. And since the House of Representatives has no power, or exerts 

none, in seating its members, when it exerts the power to judge of 

the election, the effect of that judgment, if adverse, must be to unseat 

the member. 

But the Senate never fails. Whoever comes here and demands a seat in this body demands it of the body, and takes it, not in spite of 

the body, but with the assent of the body; and it seems to me tha.t, 

when a seat is so by the body awarded, it is the judgment of the 

Senate. By that judgment all the world outside the Senate is un- questionably bound; and I do think, whatever the rule may have been 

heretofore, the Senate itself and all future Senates ought to be bound 

by that same judgment. 

But, sir, although my first reason for saying that :Mr. CALDWELL was legally electedis that I think a previous Senate which bad full jurisdiction of the question has so decided, yet I am far from saying that 

that ~s the only reason. Mr. SCHURZ. The Senator is aware th::~,t a fewweeksago thecase 

of Mr. SPE~CER was before this body. The question was whether the 

legislll.ture which had elected :Mr. SPENCER waa the legal legislature 

of the State of Alabama. He was admitted to his seat, as I understood, ancl I think as the majority of Senators understood, with the 

understanding that it should be afterward ascertained upon a con- test (and for that reason his credentials were referred, I believe, to 

the Committee on Privileges and Elections) whether the legislature 

which had elected him was the legal legislature of Alabama. or not. 

Now, according to the argument of the Senator from Wisconsin, would 

not the admission of Mr. SPE...,CER to his seat, that question being 

pending, be final and conclusive as to his case f 

Mr. HOWE. Mr. President, the qneEtion put by the Senator from 

Missouri is a very fair one to try the theory I was endeavoring to uphold. But, after all, it does not, in my view, militate against that 

theory. I was not unmindful of this view of the law when the SPENCER case was before the Senate. I n,m not prepared to say the Senate 

may not have the power to admit a Senator provisionally. Since a clerk of the House can admit a member there provisionally, I do not 

know but that the Senate may have as much authority. But that 

right to admit provisionally in the House is not conferred in terms by 

the ConRtitution. It is a power which is forged out of the necessities 

of the case. But that necessity has created the nsage in the House 

to do so. I think that usage has been borrowed by the Senate from 

the House. What I wish to say is, that whether the Senate may or m~ not admit a member provisionally, in my judgment the Senate never ought to admit a man to a seat here of whose election there is 

any cause for don bt. This I said when the question of the admission 

of .Mr. SPENCER was before the Senate 

Mr. MORRILL, of Vermont. I desire to make a single suggestion 

to the Senator from Wisconsin. The House has heretofore, on different occasions, regulated the action of the Clerk as to what members 

should be admitted. 

Mr. HOWE. By statute. 

Mr. MORRILL, of Vermont. And whenever any contested case arises, and the admission of a member on the first day of the session 

is objected to, that member is excluded. 

l'!Ir. CONKLING. That is a statute regulating t.he making up of 

the roll, in order to organize the House. 

Mr. HOWE. I am aware of those different regulations-some by 

statute and some by rule of the House. They are mere directions 

given to the Clerk of the House for his guidance in making up a roll 

of members. How far they are valirl under the Constitution it is not 

necessary for me to inquire now; it is not pertinent to this debate; 

but I think the Senator from Vermont and every lawyer on the floor 

will agree that there are very grave reasons for questioning the va- lidity of all those provisions. · I was about to say, when interrupted by the honorable Senator from 

Missouri, that I bad other reasons for believing that Mr. CALDWELL was elected. If' the question were before the Senate for the first 

time, if it were presented to us as it was presented to the Senate two 

years ago, or, in other words, if it had been presented to the Senate 

two years ago as it is presented to us to-day, how could the decision 

have been different 7 With all we know to-day, and all we suspect, 

what reasons can we assign for not adjudicating the question of his 

election precisely as the Senate adjudicated it two years ago f I have 

said the let;islature was competent to elect; Kansas was entitled to a Senator; he received a large majority of all the votes given. Why was he not elected f What reasons do the Committee on Privileges and 

Elections assign for the judgment which they ask o{ns 7 There are bot 

two. One is, that two of his rivals in that senatorial contest withdrew 

from the struggle before the struggle ended-one of them for a sum of 

money which was paid, and the other for a sum of money which was not paid. The other reason is, that the votes of some of the members 

of that legislature were controlled by money, and not by reason. One word as to each of these reasons. How doee the fact that two of 

:Mr. CALDWELL's rivals in that struggle withdrew from the struggle 

render improbable in any way the election, the triumph of .Ii!r. CALDWELL 7 Nobody denies that the legislature of Kansas were just as competent to choose after Clarke and Carney withdrew as they were before. Nobody denies, not even the Committee on Privileges and 

Elections suggest, but that CALDWELL was just as capable of being 

elected after Clarke and Carney withdrew as before. And if the legislature was as competent to choose and CALDWELL was as competent to 

be chosen after their withdrawal as before, an uneducated man would 

think it much more probable that he was elected; nay, before the event was determined, an uneducated man would suppose it altogether more probable that he would be elected. There would be a good deal of 

plausibility in saying that Mr. CALDWELL was el~ted because Clarke 

and Carney withdrew; but it seems to me very irrational for us to 

say that he was not elected because Clarke and Carney withdrew from 

tho struggle. 

But it is not a question of probabilities at all. There is the record. 

In that legislature eighty-seven votes were given for l'!Ir. CALDWELL; 

thirty-six were given against him. How many of those eighty-seven 

votes do the committee want us to discount because Clarke and Carney withdrew t Which one of them do they want us to discount 

because those men withdrew t I think, on the whole, we will a~ree 

to do what the legislature of Kansas did-count all the votes in spite 

of Clarke's and Carney's declinations. 

Nor, Mr. President, can I find any authority for concluding that 

Mr. CALDWELL was not elec:eu because some of the votes given to 

him in that legislature were paid for. I admit that money is a very 

poor equivalent to return for an election to the Senate of the United 

States. I have not any doubt n,t all on thatpoint; butithinkihave 

known men returned to the Senate of the United States who did not 

return any equivalent half so good as that. [Laughter.] Mr. CALDWELL received eighty-seven votes in that legislature; bnt sixty-two 

votes were necessary to his election. I think the Committee on Privileges and Elections will agree that if sixty-two good, honest votes were given to .Ii!r. CALDWELL, we ought to say that he was elcct~d, 

notwithstanding a great many bad votes were added to the number. 

If sixty-two honest and unpurchased representatives of Kansas said 

that Mr. CALDWELL was the man to represent Kansas here, why should 

their suffrages be impeacherl, their free will be defeated, because a good many scoundrels in the same body took money and voted for 

CALDWELL also Y I do not understand the committee to deny tba.t 

there were sixty-two honest, n.npurchased, unbought votes given for 

l'!Ir. CALDWELL. Until the Senator from Ohio [Mr. THurotiN] spoke 

the other dav, I did not suppose there was any one who believed for a moment that twenty-five members of that legislature were purchased. I do not understand the Senator from Ohio t6 insist upon 

that. He did express the belief that thirteen, at least, were pnrchased, and he thought invalidating the votes of thirteen of the 

members of the legislature would defeat the election of :Mr. CALDWELL. 

That was clearly a mistake in his mathematics. Thirteen of those 

votes might have been thrown away and it would not have affected 

Mr. CALDWELL's electipn. Unless twenty-five vot~s at least were 
1873. CONGRESSIONAL· RECORD. 141 

purchased, lir. CALDWELL bad a. majority of unpurcbUBed votes. If 

you look at the record of that election, no Senator can believe that 

bribery extended to twenty-five of the votes given to .Mr. CALDWELL. 

Recollect, the day before he received those eighty-seven votes in 

joint convention, when a large portion of biB effort, and I take it a ~arge portion of his money, had been exhausted, the legislature voted 

in the separate houses, anu on that day in the senate, if I remember 

aright, .Mr. CALDWELL received but eight votes out of twenty-five, 

and he received but thirty votes out of ninety-eight in the house. 

Mr. SAULSBURY. Will the Senator from Wisconsin permit me to 

call his attention to one fact? · Mr. HOWE. Yes, sir. 

Mr. SAULSBURY. I ask him what he will do with the fact which 

appears from the testimony of Mr. Clarke. The Senator is now speaking, I understand, of the number of votes that were purchased, if any were purchased, by the Senator from Kansas. I call his attention to 

the testimony of Mr. Clarke, who states that, while his influence waa being negotiated for by Mr. CALDWELL, he stated to Mr. CALDWELL 

that all the strength, or nearly all the strength, be had developed had 

been purchased, and that CALDWELL virtually admitted it by saying 

that success would do away with the stigma. Was not that an admission, I ask, on the part of Mr. CALDWELL, that the votes and the 

strength which be posssessed in that legislature were purchased 'i 

Mr. HOWE. I confess, Mr. President, I should be a little reluctant 

to find so grave a fact as that upon so loose a statement as that of 

1\Ir. Clarke's. I was about to say I should be a little reluctant to find so grave a fact upon any statement Mr. Clarke might make in the 

temper in which he was when be testified before the committee. No, 

1\Ir. President, the testimony shows that in Kansas everything was not dishonest; all were not corrupt. The testimony shows that in 

that very legislature there was an effort, a resolute effort, made to 

stem the tide of corruption, and there was a party-! do not know, 

the record does not disclose, how large a party, but a party-and I 

would shake hands with them if I could meet them-which earned 

and wore for a time the nickname of Purifiers, because of their 

effort to resist what they considered to be the tendencies to corruption in the State of Kansas. I think on the whole there is no safe, no satisfactory reason for believing-! do not think even the Senator 

from Delaware would conclude, on the whole-that there were enough 

members of the legislature bribed to vote to have used up Mr. CALDWElL's whole majority. 

When the question shall arise, when one shall come here claiming a seat in the Senate of whom it shall be said and shown, not merely 

that he bought votes, but that he bought his election-that he bought 

votes without which he conld not have been declared elected a mem- ber of the Senate-! shall be ready, if I am here in that sad day, to 

crmsider and determine that very grave question, whether the Senate 

may or may not inquire into the motives which influence members of 

the legislature in voting for a Senator. I shall not jump to meet that 

responsibility. It is not, in my judgment, here forced upon me. We 

know that the evil of that day will be sufficient unto the day. Let us hope that that day will be sufficient unto that evil. That question 

I do not propose to discuss to-day. I do not propose to-day to say one word, if I can help it, which shall hereafter be quoted as a re- striction on the freedom of a State in choosing her Senators; and I 

shall not to-day, except by accident, utter a word which can be con- strued as an opinion that the legislature of a State may dispose of a seat in this body by sale as well as by election. 

For these reasons, .Mr. President, I shall not be able to vote for the 

resolution of the committee. 

There is another question threatened-and when that comes, I shall 

be prepared to meet it, I hope-the question of expulsion. I would 

not allude to it now but for one thing. It has been repeatedly said 

during this debate, not in so many words, but in effect, that the power 

to judge of an election and the power to determine an expulsion were cumulative remedies for the same evil. Even the Senator from Ohio 

I thought the other day seemed to ridicule the idea that the Senate, 

being clothed with full power to judge of the election of a member, 

should not exert that power to exclude an obnoxious member, and 

not wait to have the power of expulsion invoked. The SenatOr from 

New York [?tir. CoNKLING] said in reply to that that the two proceedings, if I understood him, the two questions, were as distinct from 

each other as the question whether two persons had been married was diatinct·from the quest.ion whether the same two persons should 

he divorced. I think the Senator from New York was entirely justified in that illustration, and I think he might have gone a good deal 

further. I think the distinction between the question of an election 

and that of au expulsion is much broader than that between mar- riage and divorce. The distinction is as broad, I think, as the question whether ~be Senator from New York may maintain in equity a suit against me to enforce the convey;nce of a piece of land, and the 

question whether in a court of law he may maintain an action of 

trespass against my colleague for entering upon the land. The question of marriage and the quesliion of divorce may and ordinarily do 

arise in the same proceeding, are settled upon the same testimony 

between the same partiAs, and in the same tribunal. Now this question of election iB tried between entirely different parties, so to speak, 

from those who are interested in the question of expulsion. When 

you are trying the question of election, your testimony and your judgment are brought to bear upon the legislature of a State or upon t.1. Stute. No matter thongh the candidate for the Senate may be the 

purest man ever createu, yet, if you find some defective quality, some act of omission or some act of commission in the State which avoids or forbids his election, you must so declare. 'Vhen you are trying 

the question of expulsion, you have not the slightest reference to the 

conduct of the State, but you have sole reference to the character of 

the man. The ~tate may have piled upon him election upon election; 

they may have been· ever so unanimous in declaring that they want 

him for their representative; yet, if you find the man to be unfit for a Senator, then you proceed to expel him. 

Mr. CARPENTER. Will my colleague allow me to make a suggestion at that point 7 

.Mr. HOWE. Let me add one word, and then I will hear my colleague. · I want to say, furthermore, that the tribunal which tries the question 

of expulsion is radically different from that which tries the question 

of election. The question of election is submitted to a majority of 

the Senate. The question of expulsion is submitted to two-thirds of 

the Senate and two-thirds alone. 

I will now hear my colleague. 

Mr. CARPENTER. I wish to make a suggestion in aid of the anal· 

ogy which my colleague bas made here between the case of marriage 

and divorce and the case of membership and expulsion. The analogy 

goes a step further. In every action of divorce there is involved and 

must first be settled the question of whether the parties were married or not. It is a necessary allegation to a bill in chancery for a divorce 

that the parties were at a time and place married, and that must be 

proved; and the court has no jurisdiction to divorce, unless the fact 

of marriage be first established. So here the fact of election must be 

established before you have got a member to expel, and you can expel 

nobody but a member. 

Mr. THURMAN. Will my friend allow me f I dislike very much 

to interrupt a speaker, but I want to ask my friend a legal question. 

I understand him to take the ground that in no case whatsoever can a Senator be expelled unless that Senator has been guilty of some wrongful act; unless you can impute crime, or misdemeanor, or offense to him personally. Am I right in that 'i 

. Mr. HOWE. The Senator does not understand me; at least if he 

understood me to say so. I have not said it. What I said was, that 

in determining the question of expulsion we have not the slightest 

occaaion to refer to the legislature. No matter what their will might 

have been-they might have been unanimous in the selection of the 

individua.l-yet if we found the individual himself unsuited to the 

work of the Senate, by reason of crime or by reason of some other 

defect-if we found him unsuited to the work of the Senate, twothirds of the body could send him out of the Senate. 

?tir. THURMAN. Now if it does not interrupt the Senator-- · Mr. HOWE. Certainly not. · Mr. THURMAN. If I understand his argument, he hesitates to say 

whether we can declare an election void because members of the legislature were bribed. If we cannot declare an election void because 

the majority that elected that man were purchased, what will he do 

with this case T Suppose the majority were purcha,aed, but the person 

elected had no hand whatever in the purchase Y In a case like that, 

if we cannot got{) the election; if that cannot be set aside; if we can- not expel except where there has been personal misconduct on the 

part of the member, what is the remedy t So in the case supposed, 

although every member of the legislature bad been bought, yet the 

person elected not having been the purcha-ser, he would be entitled 

to his seat. Does the Senator intend to maintain such a proposition as thatf I 

Mr. HOWE. It is precisely that proposition which I said I did not 

maintain. It is precisely that question on which I said I did not mean to express an opinion. I did say that I did not think we could 

find a legislature had not elected, simply because some of its mem- bers had been bribed; but I also said that I did not mean to discuss 

the question now whether, if we found that the majority which re- turned the member was influenced by bribes, we could not declare an election void. That question I postpone very gladly until the con- sideration of it is forced upon me. Mr. President, that I may not be mistaken at all on this question 

of the power to expel, I want to say that I think that power iB vested 

in two-thirds of the Senate just as broadly as any power is vested in 

this body or as any power is vested in the Congress of the United 

States. I mean to say, in spite of what I heard from the lips of the 

Senator from Ohio the other day, and a-s I thought from the Senator 

from New York also, that the Constitution says to two-thirds of the 

Senate "You may expel a member" just aa explicitly and just as un- conditionally as it says to Congress" You may levy taxes." I heard 

the Senator from Ohio say that this power was vested in the discretion of two-thirds of the Senate, but that it was a legal discretion; 

and I thought the Senator from New York assented to that when }lQ 

said of course we could expel, but we could not expel for throwing 

sand on the carpet. 

Mr. CONKLING. Unless it violated some order of the Senate. 

Mr. HOWE. He said we could not expel for tluowing sand on tlle 

carpet, and he adds now" unless it violates an order of the Senate." 

1\Ir. President, I ought per hap_~:~ not to make the admission, but I must 

make it; I do not know what legal discretion is. I understand what 

you mean when you say conduct is under the control of law, and I 

understand what you mean when you say that condt1et is under the 

control of discretion. But I cannot understand what this legal dis-
142 CONGRESSIONAl} RECORD~ MARCH 21, 

cretion is. It seems to me a contradiction in terms. It seems to me 1hat where law is, there is no discretion; and where discretion ia, it seems to me the law is silent. 

Mr. THURMAN. 'Vill my friend allow me to put a question to 

him right there 'I 

Mr. HOWE. Yes, sir. 

Mr. THURMAN. He understands it very well, I think. He has 

been an eminent judge. It is said to be within the discretion of a court whether it will grant a new trial. That is a matter within the 

discretion of a court, and so much so that no writ of error, according 

to the course of the common law, will lie from a decision of a court 

granting or refusing a new trial; but is not that discretion a purely 

legal discretion 'I If a judge were, without any:cause whatsoever, 

and against the right and the justice of the case, to grant a new trial, 

and he were impeached for it, and brought before the Senate, would 

not my friend vote that he was guilty 'I I think I should. 

Mr. HOWE. I would. vote to impeach a judge if I thought be acted 

corruptly, dishonestly, irrationally, insanely, in granting a new trial, or in granting a continuance, or doin<F any other official act. But 

does the Senator mean to insist that, after all, the judge, in granting n. continuance, is guided by a legal discretion 'i' 

Mr. THURMAN. Yes, sir. 

Mr. HOWE. If he grants it in an improper case, or refuses it in a proper case, his decision is final. It cannot be reversed. Nothing 

happens except that he may be impeached. If that is what is meant 

by legal discretion, I understand it. In that sense I understand the 

law which controls us in voting on expulsion. I admit that, if in an improper ca~e I vote to expel a man from this body, that constituency 

which sent me here, when they get jurisdiction of me again, may discipline me. And if I vote to keep him here when he ought to leave, 

that constituency can rehear the question and pass judgment on me. If the Senator means that by speaking of legal discretion, I agree that 

he is entirely right. But still I insist that discretion is not and can- not be controlled by law. The illustrations show only that the discretion vested in the court which tries the impeachment is as lawless as that of the judge who grants or denies the motion for a new trial. 

And the discretion of the constituency which reviews tbe record of a representative is as lawless as that of the representative himself 

while in the exercise of his office. If two-thirds of the Senate should 

expel the Senator from New York for throwing sand upon the carpet, 

who is to redress that wrong 'I I do not know of any such power. 

:Mr. CONKLING. Would that be cause for expulsion f 

Mr. HOWE. Upqn that precise question I do not want to give an opinion. I do not want to say a word which can be construed into an encouragement of that kind of conduct. I should rather have my faith 

tested by reference to some other act, though, since the question is put 

to me, I will say that for myself-! want to bo frank-if the Senator was on trial for that specific act, and for that alone, I should, I admit 

it, vote to acquit him; but I beg him not to conclude that, because I 

should vote for acquittal, there would be more than one-third of the 

Senate who would agree to acquit him. And unless one more than 

one-third should acquit, the Senator would be compelled to vacate the 

seat he adorns so much. 

Mr. President, I have indulged in this one reference to the power of 

expulsion merely by way of indicating that, when that question comes- before me, the Senate may understand that I shall not feel that I am under any constitutional limitations or restrictions whatever. When we come to deal with that question, if we shall come to it, I want to 

say ~at for myself I know of no learning anywhere, no law, no rules 

behind which I can take shelter. I must stand face to face with the 

case, with the man, with the evidence, and I must say for myself 

whether I believe the public welfare demands his expulsion or permits his continuance here. It does not matter what others may have 

said; they have given no law to me. It does not matter what twothirds of the Senate may think; I must speak for myself, upon my individual responsibility, accountable only to that constituency which 

sent me here, and, perhaps I may be allowed to a~d, to that Being 

who gave me existence. 

1\fr. MORRILL, ofMa.iue. Mr. President, I have listened attentively 

during these ten days of consideration that are now behind us. I do 

not riRe now for a speech to the Senate. It is not my purpose to do more than to submit a few observations touching a few principal facts 

and a few propositions of law which I understand to be involved in 

these considerations, and to my mind they all lie within such a nar- row compass that I feel myself quite at liberty to promise the Senate 

lhat I shall not tax their patience at any great length. 

Among the things that are obvious, and to which I invite attention as amon~ the first to be considered, is the great fact, not doubted, not 

denied-It seems to have been conceded on all hands, deplored by all, 

condemned by all, and denounced by all-that great fact which comes to us from history, and the report of the committee combined, that 

in Kansas, in 1871, on the occasion of the election of Senator, there was a state of things disreputable to the people of that State, disreputable t.o the country at large, and which in its legitimate tendencies and consequences does affect the public welfare, and impinges 

upon that great fundamental principle in our system which, if we are to live and not perish as a people, we must see to it, so far as we are concerned, that by our countenance or forbearance it is not re- peated again in any of the commonwealths that claim the right to be 

represented here. From the beginning to the end, let it be remarkedfor I am not to pause to go into the details of this testimony-froE:t 

the time this report was made, from the moment it was laid upon our tables, we were a~vised of the general facts. We have been here un- der the shadow these 1ast thirty or forty days, consciously under the 

shadow of a great political enormity. So, sir, it has been treated; so the honorable Senator who sits by my side [Mr. MORTON] character-. ized it; so it has been treated by every Senator who has spoken upon 

the subject on either side, and on all hands, for there is no side here; 

it is the Senate, and only the Senate. There is no partisan considera-. tion here, and, from the nature of the case, there can be none, unless 

all of us be so far gone out of the way that we have made up our minds 

willfully to be false to the great duties of this occasion and this hour. 

Let it be said to the honor and credit of the Senate of the United 

States that in this great discussion it has exhibited no partisan 

character at all; it is the American Senate to-day, God be praised, in 

spirit and in purpose as I believe, and as I believe the result will 

show. 

So, sir, we stand in the presence of a great political enormity con- summated. It is so by the finding of your committee ; it is so by the 

judgment of every Senator who has spoken upon this subject; and 

be who spoke eloquently and elaborately and exhaustively, did not 

close that speech on yesterday until he had added his denunciation 

in the same strain and in the same spirit, as I understood him, and 

with the same appreciation of what we are standing face to face with. 

Now, Mr. President, I am not going to detain the Senate by an analysis of this evidence, although I have been pretty attentive to it. 

It is not necessary for my purposes. It does not stand in the way of 

anything that I shall have occa~ion to say, or of anything that troubles me. We do not divide on this. Obviously, on the occasion of the 

election in 1871, the capital of Kansas had become a sort of ballot-exchange, where the ballot-brokers, their retainers and runners, met to 

transact the business of supplying the American Senate with a mem- ber. Sir, if the facts of this report are not greatly misstated and 

distorted, what took place on that occasion in Kansas is a grotesque sarcasm on the constitutional method of providing members to the 

American Senate. - I shall assume, for the purpose of t.he argument, what the committee report, that an election which took place in Kansas in 1871 was controlled by bribery-bribery of a candidate by the payment of large sums of money to retire and to give his support and to carry in his followers; bribery of another candidate by the promise of another large snm of money to retire and to carry in his supporters; bribery of eJectors directly by the payment of money; and attempt at bribery of other 

electors by the offer of money not accepted. 

That being the case, lli. President, the question arises whether, in 

the Senate of the United States, there is any remedy; and I come directly to that question. Has the Senate of the United States any concern with or power over that matterY Does it belong somewhere 

else 'I Must the Senate of Lhe United States say to Kansas, "Heal 

yourself¥" May the Senate of the United States content itself by 

saying to Kansas, "This is all wrong; we deplore it; we denounce it; we hold it criminal; we hold that your conduct is vicious and subversive of the principles of free government; but the responsibility is with yon f:' 

What is this defensef What is the defense from the sitting mem- ber who admits the payment of $15,000 f Snbstsntially that that is no concern of ours; that it was a private transaction, although itr. had relation to a singularly public event; that, being a private transaction, it is supposed (although it related to a public event and that 

public event was the transfer of a private citizen to ihs Senate of 

the United States) to be no concern of ours. Of course, I do not stop 

to remark upon that. But the legal position taken here, a position 

framed by counsel as astute and as subtile as any in the land, counsel 

subtile enough and astute enough to get a judgment at Geneva so magnificent in its proportions, for actual and direct damages, that we have 

not yet been able to find equitable and bona-fide claimants for a moiety of 

it, is, in substance, that we cannot consider the question at all. The 

defense is a general demurrer to our jurisdiction. The defense is, 

"What of all thatf Suppose there were frauds in Kansas; suppose, 

for the. benefit of the argument, we concede that this election was brought about by bribery, just as you say, what of it f Here is the 

certificate of the election; here is the certificate of the governor, cer- tifying that all was done tllat the Constitution requires to be done; 

and it is under the broad seal of the State, and yon can go no further." 

That is, that this act, the election of a Senator of the United States by 

the State of Kansas, is the supreme act of the State; that it is a sov- ereign act; that it is an act of unqualified authority; that we cannot 

inquire into it; that it springs from the Constitution of the United 

States, which provides thatThe Senate of the United States shall be compose(l of two Senarors from each 

State, chosen by the legislature thereof for six years. 

Looking at that particular clause of the Constitution, and shutting 

your eyes to everything else, that would he so. The State is entitled 

to two Senators, and the legislature shall choose them ; that makes 

it sovereign; that makes it an absolute act, to be sure; that proves the case beyond all question; and, if it rested there, what would the 

State have a right to doT Choose whom it pleases, when it pleases, as it pleases, and you would have no right to make inquiries into the 

proceedings. The State, of course, under that provision of the Constitution, might choose without regard to qualifications, or age, or 

nativity; it might choose to be represented on the floor of the Sepate 
1873. CONGRESSIONAL RECORD. 143 

by an alien; it might choose to elect someborly not an inhabitant of 

the State, and, resting on that provision of the Constitution, it would 

be sound; it might also choose when and aa it pleased. 

But it so happens that there are two or three respects in which this 

is not the sovereign act of the State. It so happens that in interpreting the Constitution, as in interpreting everything else, you must 

take a broader view of things; you must look to the whole instrument. 

In the first place, I have to say that this is in no just sense the act of 

the State at all as a sovereign State. Perhaps, Mr. President, no one on this floor is in a general sense a greater "stickler," so to speak, for 

State rights, and those rights of the people and of the States which are reserved in the Constd.tntion, than I am myself; but in this proposition I fail to see State sovereignty or State rights at all. It is the 

act of the State in the Union, acting through the Constitution, and 

not a-cting in the right of its reserved powers as a State. Outside of 

the Constitution of the United States it has no right to send a Senator here at all. If it sends a Senator here, it is in obedience to 

the Constitution of the United States; and when it chooses, it must 

choose as the Constitution directs. What does the Constitution directf 

In the first place, the Constitution directs whom it shall send-the 

style of man it shall send. He must be thirty years old; he must be an American citizen; and he must be an inhabitant of the State. 

Then its power is qualified still further by subjecting it, under the 

Constitution, to the authority of Congress as to the manner. How 

mustitchoosef It must choose as we direct. How have we directed f 

We havo directed that it must choose by a majority of its legislature. 

In order that its choice shall be legitimate under the Constitution, 

it must conform to all the principles of the Constitution, first as to 

the qualifications of the person, next as to the requirements of Congress ~s to the election. 

And, Mr. President, all these limitations and qualifications come finally under another provision of .the Constitution, to be subjected to 

the judgment of the Senate; and that raises the principal question in 

this case. Have we tlie right to judge T It is conceded that we have 

to some extent. How is that power restricted in the Constitution, or what is the scope of our authority to judge f 

Each House shall be the judge of tho elections, qualifications, and retmns of its own. members. 

How f I will read from the defense drawn up as I have stated. It 

is in these words : 

I come here, a. Senator of the United States, duly certified as such by the compe· tent authorities, and elected in all the forms of the Constitution and of the statute laws, whether of the United States or of my State. What right have my fellowSenators to go behind my commission, to inquire into the motives of the mem· bars of the legislature in electing me to the Senate of the United States I On 

what text or pretext of law will the committee justify any action against me on the 

part of the Senate i 

He then goes on to say th'a.t there is no law of Kansas that requires 

it; there is no law of Congress that requires it; there is no absolute 

provision of the Constitution of the United States that requires it; 

and adds: 

On the provision of any articlo of the Constitution of the United States I No. 

It is true, the Constitution empowers each House to be "the judge of the elections, 

returns, and qualifications of its own. members." Nobody calls in question my legal qualifications. 

If any one did so call in question, the inference is that it can be inquired into, as it can unquestionably. 

l\fr. MORTON. In the cases of Gallatin an:l Shields, long after their 

admission. 

Mr. MORRILL, of Maine. And further: 

Nobody impea<Jhes my re\urnIf it was impea-ched, it is conceded it could be inquired intoand if the inquiry have any basis whatever in the Constitution of the Un:ted 

States, it is in the word "elections," in the cited clause of the Constitution. 

Now, sir, it will be seen how gingerly this power to judge is approached :·"if" it has any application anywhere, "if" there is any 

power anywhere to inquire into the great injury in this case, it is in 

the word" elections." So it is. That is what I suspect. Well, how 

does he get over that f Why there he drops it. 

But the question recurs, and I again demand, on what 11\w do you ~;~roceed 7 

You may inquire, in virtue of the Constitution1 into the fact of my electwn; but 

tbA Constitution does not say you may inquire mto the motives of the members of 

the legislature. 

That is the point. It is conceded that you may inquire into the 

fact of an election, but not the motives of the electors, because the 

Constitution does not say that. Mr. President, there are two sorts of 

constitutions in this country. There is the written compact, out of 

which springs the Senate of the United States and the Government of 

the United States, limited in its capacity and authority. There is the 

unwritten constitution of the American people·that lies back of it, 

out of which the Constitution itself sprang, and by which we con- stantly interpret the text of the written Constitution. It is the con- stitution of society; it is the constitution of American communities; 

it is the great, solemn compact of history, on which society is built up, 

and by which society interprets itself-interprets all legislative a-cts 

and constitutions. 

l\fr. President, if there is nothing to be found in the Constitution 

that you may inquire into the motives, there is nothing found in the 

Constitution that you may not, while on the other hand everywhere, 

among all civilized people, it is proclaimed that yon may inquire into 

the character of an election. Yon may inquire whether an election 

has taken place or not, an~ if you find tha1t the electors have been 

purchased, you have a right to infer by the teachings of common sense and common morality, by the principles of the common law back of all 

constitutions, as well as the practice of all civilized nations, that an election controlled by bribery or purchase is not a valid election. That 

is what it comes to. It is in the nature of things. An election, to be an election in law, must be free. Is it free when it is purchased T 

It ha.s been said here in this chamber this morning that if a man votes.according to his intent, if he puts in his ballot free, it is an election, although it was a purchased vote. I deny it. It is an absurdity. A man who votes on a bribe does not, in law, vote at aU 

in the nature of things; he iR not an elector, but a vender. To be an elector and to carry a vote he must be a free man, and it must be a free vote; it must be an unpurchased and an unbribed vote, else he ceases to be an elector; and, sir, search the history of the earth and 

you will find no instance where an election brought about by fraud, 

when bi:ought before the competent authority, has not been declared 

invalid. 

Does anybody deny that f Of course not. The only question is, 

whether this is the body with the power to examine it and decide it. 

That is all there is of it, all there ever was of it. Does anybody believe that there is an American communi by, from a town up through 

the cities, counties, States, and up ·to this Senate, where bribery at an election would not be held to vitiate it, and where it would 

not be declared to be void t Of course not. Then here, and here 

alone, in the Senate of the United States, bribery in elections is to 

take shelter and be safe. It may be so ; but if it should be determined so, alas for the Senate, and alas for the country f 

Mr. President, this brings me to consider, conceding that this 

election, as the committee say, was brought about by bribery, by the 

purchase of votes enough to control it, was it valid f I have suggested that that could not be so. If it were not, can we judge f 

That is the only question. Can we determine that question 7 Let us come back to the text, ''Each House shall be the judge of the 

elections." Does anybody doubt that the House of Representatives 

could examine into the question of bribery through a committee, and 

if they found that an election in a given case was absolutely con- trolled by bribery, that they could declare it null and void 7 Of course not. But it is said the analogies fail altogether when you come to the 

Senate; that the Senate stands in a very different relation to this q ues- tion from what the House does. Let us see. The Houses are differently 

organized: the Represent.atives are chosen by the people direct; we are chosen by the people's representatives. Does that change the 

principal facti Does that change our power to judge¥ It only limits the scope of our judgment; that is all. They go back to their sources of power; so do we to ours. They go back to the people; we go back to the people's representatives. That is all the difference. 

They inquire exactly how the people themselves conducted; we inquire how the people's representatives conducted; and therein I think 

the analogy is perfect, and to that extent I submit that the power of 

both branches is the same and must be the same. Very well; that 

being so, it follows that we are the judges to look not only at the 

returns and see whether they are proper, but we are to look at the 

qualifications; we are to inquire, if you choose, into the qualifications. 

As has been done oftentimes, more than once certainly, in this body, we may inquire whether the man is qualified in relation to citizenship, as I think was done in the case of Shields, from Illinois. We 

may inquire also as to the age and as to the inhabitancy, as I remem- ber we did on an occasion so recent that it is within the memory of 

all of us. Now, sir, if we can inquire into those things which are not patent on the face of the instrument, shall it be said that when you come to the 

question of ascertaining whether a majority voted you are estopped 7 

That is the argument here-that you are estopped; and you are estopped 

because of whatY Because, if yon go one step back to inquire how a man voted, you are in danger of looking into his motives. Well, now, 

Mr. President, I do not choose to speak on the question of motives at 

all. It js not a question of motive; it is simply a question of fact. 

You inquire into the fact-how did the man vote on that occasion; was he bribed; was his vote a voluntary, free, unbonght suffrage, or was it a purchased and bribed suffrage 7 You find that fact. The 

motives are quite another affair. If anybody is troubled about the 

motives he can moralize upon it as he pleases; but as to the fact 

whether that majority or that election was controlled by bribery, 

whether there were brokers there, and those men were bought up and 

paid a certain sum of money, and received it and voted accordingly 

and for that reason, is a fact open to the Senate of the United States 

under the right to judge of the elec:t;ion. 

Now, on this point in the case I conceive that these two things aro apparent: .first, that this election was effected by bribery; in the 

second place, it seems to me most obvious that we are the judges in 

the sense that we may inquire into that fact, and if we find that to 

be the fact, then I submit that the election is invalid, although it is 

not so declared in the Constitution, although it is not so declared by 

the laws of the State ofKansas, or by any law of the Congress of the 

United States, but it is so in the inherent nature of things, by the 

principles of common law and the usual practices of civilized nations. 

The man did not receive the votes of a majority of the electors, in the sense of free and unbiased and unpurchased electors, and, therefore, 

for that reason, he failed of having a majority. 

Mr. President, there is another power in the Constitution, which 

it is said is tho safer power for us on which to relyt and that is the 
144 CONGRESSIONAL RECORD. MARCH 21, 

power of expulsion. But I am aclmonisbed by this same authority 

that that provision of the Constitution furnishes us no authority to 

inquire into this proceeding at all. First, you have no authority to 

inquire into this proceeding, because it was the supreme act of the 

State; secondly, you cannot inquire into it, and if you do yon can- not act upon it, because all these transactions antedate the advent of 

the Senator to this chamber. 

I agree with what has been said, that the Constitution provides 

for two distinct prerogatives; first, that which I have named in 

regard to the inspection of 1he election and to the right to inquire 

and judge of the election in the particulars I have stated. The next 

is that supervision which the Senate of the United States has over the member while he is here-that supervision which it has over his 

behavior-in the language of the Constitution, that it may punish 

him for misbehavior, and, further, two-thirds concurring, may expel. 

This argument seems to put it upon the ~onnd tha,t there is no power to expel except for misbehavior of the member after he 

becomes a member of the Senate, but my own judgment about it is 

that the power to expel is an unqualified and absolute power, resting 

entirely in the discr~tiou of the Senate of the United States, dependent only upon the exercise of a discretion, a sound discr~tion, which 

my honorable friend from Ohio denominated a legal discretion, which 

I suppose most lawyers understand to be a sound discretion in law. 

:Mr. President, !shall vote for the first resolution-for the resolution 

of the committee-for the reasons I have_ stated. I shall vote for it 

because I believe it is a wholesome exercise of authority. I shall 

vote for it because I think it is not a dangerous exercise of authority. _ I shaH vote for it, superadded to all that, because it is a duty devolved upon us to exercise that power. _ We are the judges of the 

elections, and we may not shirk it. If it comes to our knowledge 

that an election has been carried by fraj,i!d and by bribery, it is our business to examine into it and to declare it. It will be a wholesome 

thing for the communi t.y and for the Senate if we do it, and I am not 

to be intimidated at all by the idea that if we undertake to exercise 

the duties which are devolved upon us here by this discretionary 

power given in the Constitution, somebody will be rash. So that we are not rash, we have done our duty, and we must trust that the 

American people in the future will have .the good judgment to send men here a-s dililcreet as we are at least. 

Sir, it is said that there is more danger and more peril in the exer- cise of this power than there is in the forbearance of it; that even if this evil exist, even- if this great enormity to this whole extent 

is true, it is better to forbear than to tread upon doubtful ground. 

lli. President, if we cannot do that, who can Y If the Senate of the 

United States cannot correct this evil, is there any power under the 

Constitution and the laws, either of the United States or the State 

of Kansas, that can f Certainly not. Kansas has made her election 

good or bad. She cannot revise it; she ca,nuot reverse it. She appeals to us. I think we have the power. If we decline to do it, in 

my judgment it is the refusal of the exercise of a clear and un- doubted power, and the refusal to perform a clear and unquestioned 

duty; and therefore, sir, painful a-s it is in many aspects of the case, 

personal and otherwise, for myself, I have made up my mind to perform that duty as I understand it. 

Mr. STEW ART. Mr. President, I did not think, when this discussion commenced, that I would say a word; but having listened and 

reflected for several days, I feel called upon to state a few rea-sons for 

the votes I shall give in this case. I feel as much as any one the 

responsibility of those votes and of what I shaH say; and in the outset I beg leave to remark that I feel bound by the Constitution of the 

United States, and the laws made in pursuance thereof, and the laws 

of the various States not in conflict therewith. 

The Constitution has made us judges, and my idea of the duty of a judge has always been that he was bound by the law; that he could 

not look behind constitutions and laws; he could not say there were principles lying deeper tllan the constitutions and laws that were written, and exercise a discretion in a case where the law had pointed 

out the road. I have mistaken the duty of judges if they are at liberty to enact laws, find facts, render judgment, and carry that judgment into execution when there is a road pointed out by laws enacted 

for their guidance. The very law by which we exist as a body says we shall judge of the election of members of the Senate. The language is, that each House shall judge of the election, &c.; but judging of the election is the only point to which I now desire to call 

attention. 

Each Honse shall judge of the election of its members. Under 

what laws must they judge Y I undertake to say that the character 

of jurisdiction conferred upon the House and upon the Senate is the same. The Senate are equally judges of the election with the House, 

and in determining the question they are governed by the same principles. If, in the same language, a court is given jurisdiction of com- mon law and in equity, or is given jurisdiction of a dozen different 

things, the judge, when he comes to determine each particular case, 

must be governed by the law of that case. _ In the first place the Constitution declares that the members of the 

House of RepresEmt&tives shall be elected by the same body of elect- ors that elect the most numerous branch of the State legislature. 

Does anybody doubt that the State has the authority to pass a law 

saying who shall vote for the most numerous branch of the State legislaturef Does anybody pretend that the lower House can go behind 

such a law f In many of the States it is provided ~at aliens who 

have declared their intention to become citizens may vote. Is not 

the Honse.. of Representatives, in judging of the election of mem- ber from such States, bound by that law f In every Stat.e, I think, it 

is provided that votes procured by bribery shall not be counted. Can 

the House of Representatives go behind that law and count bribed 

votes 7 No. Suppose a State should become so degraded and immoral as to pass a Jaw that votes should be counted notwithstanding 

the parties had been bribed, and Congress, havin~ concurrent juris .. diction to legislate as to the manner of the election, bad passed no. law on the subject, and that the State law was the only law on the. 

subject, would not that bind the lower House in determinin~ the,. 

question, if they were disposed to be governed by the law 7 Is 1t not 

within the jurisdiction of the States to pass such a law f If it is, it 

is not ,in the jurisdiction of any other body unl~ss there be concur- rent jurisdiction, and if there be concurrent jurisdiction, and if Con~ 

gress and the State shall concur in saying that a bribed vote shall be 

counte'd, what can the House of Representatives sayf Would they 

not be bound by that la..w f Everybody must admit that they would 

be b?nnd by such a law, and that they must administer it as they 

find It. 

Now comes the case of a Senator, which is precisely similar. I find 

that in the constitution.-. of the State of Kansas it is provided that-. 

Ea{}h house shall be the judge of the election, return, and qualifications of its OWD members. 

Is anybody prepared to say that that provision of the constitution 

of Kansas is in conflict with the Constitution of the United States f 

Is anybody prepared to say that any part of that jurisdiction given 

to each house of that legislature to judge of the qualifications of its own members has been conferred by the Constitution of the United 

States upon Congress, or the Senate, or anybody else f Is not that an exclusive jurisdiction, to judge of the election and qualifications of 

its own membersf Must it not be respected f Such a provision is in 

every State constitution in the United States. It was in the State 

constitutions before the Federal Government was formed ; it was in 

the State constitutions at the time the Government was formed, that 

each house of the legislature should have that power. It is coutained 

in the constitution of every State which has been admitted since the 

formation ofthe Government. We have furthermore the tenth amendment to the Constitution, which says that the powere which have not 

been expressly granted to the United Statea are reserved to the States or to the people. This was a prominent provision, a prominent power 

retained in these State constitutions which has been recognized from 

the foundation of the Government. Then will you say that each 

house of a State legislature shall no longer exercise that power T 

If each house of the legislature of Kansas has the right to judge 

of the election and qualifications of its members, what follows f It 

will be remembered that the judgment of' a legislative body upon the 

election and qualification of its members is a continuing judgment, 

because it is provided in this very constitution that when a member ceases to have the right to act he may be expelled. If be has com- mitted such acts as disqualify him, it id provided in the same constitution that he may be expelled. But, while he is there, it is the judgment of the house that he bas the right to be there and has the right 

to act, and tbatjndgment is conclusive. If, in any law,inanyreport 

made to Congress or either House until this case came here, if anywhere in any written document or speech it can be found that the 

jurisdiction of each house of a State leg_islature to determine the qualifications of its own members has been questioned, I should like to see it. It seems to me that the proposition is too near an axiom to 

need demonstration ; and yet the report of the committee in this case seeks to question it. It says, notwithstanding the two houses of the 

Kansas legislature declare that their members who voted for CALDWELL were competent to sit there and were members, notwithstanding 

their judgment upon that point, the Senate can come in and say they were not competent to sit and act. 

Mr. President, there are a groat many bad things in t'bis worJd; 

there are a great many sins in the world; there are a great many 

wrongs in the world ; but we cannot cure them all in one investigation; nor can the Senate take jurisdiction of everything in one investigation; nor can the Senate, for the -purpose of getting at a wrong, or supposed wrong, afforcl to ride over the written law, which we are· each sworn to respect. We have no more ri~ht to say that a member of the Kansas legislature was disqualifiea from voting, or that, if be did vote, his vote shall not be counted, than we have to 

abolish the State of Kansas. The continuing act of that legislature 

in keeping him there is a declaration which it makes, and which it 

has the right to make, the same as the declaration that the Senate 

makes in keeping, CALDWELL here. CALDWELL bas a right to vote. 

Nobody bas a righ~ to question it. We are the exclusive judges. 

Suppose the House of Representatives should attempt to investigato 

the seats of members here, or suppose the Kansas legislature should 

do so; there is just as much authority for the Kansas legislature to 

investigate our right to vote here as t.here is for us to investigate the 

right of a member to vote in the Kansas legislature. The St.ates were made before the Constitution. They had that right then, and 

it. ha-s never been taken away from them. If we can judge of the 

right of members of the legislature to vote, they can judge of our right by the same authority. 

We can do some things iu judging of this election. What can we do f We can judge whether there is a State there that is entitled to 

elect a Senator; we can count_ the votes, alld see if they were cast; 
1873. CONGRESSIONAL RECORD. 145 

we can ascertain the fact whether there was an army surrounding 

tlJe legislature, and whetiler there was any election held there. We can uo all those things; but when we come to say that we can determ,ine the right of a member of the legislature to sit there and vote, 

and have his vote counted, we are exceeding our jurisdiction, just as much aB the legislature of Kansas would be exceeding its jurisdiction 

if it attempted to investigate our right to vote here. 

I do not think, therefore, if this matter is to be discussed and decided 

upon law, that there can be a question that every member of the 

Kansas legislature who is decided by that legislature to be qualified 

and have the right to sit in that legislu.tnre, ha8 the right to vote 

there. I do not think that question can be involved in any obscurity 

whatever. It is plain law, and when I have plain law I do not want 

to look to unwritten law. I am too fearful of my own ability, when 

the law is written, when constitutions are framed, when I am sworn to obey them, to look to some unwritten law, or to enact a new law, 

and become reformer while I am jud~e. 

I will not go over the precedents of this subject. The ca8e of Potter against Robbins, read by the Senator from New York, [Mr. CONKLING,] where all the best talent of the country concurred in the opinion that this was a question out of our jurisdiction and within the 

jurisdiction of the State legislature, is the highest possible authority. 

I will not refer to that case, because it bas been already laid before the 

Senate. I will not revert to what was said in the report in that case. There are two reports subsequent to that; one that I believe I had the 

honor to submit from the Judiciary Committee, in which the former 

Senator from illinois (Mr. Trumbull) concurred, in which the doctrine was laid down that each house of a State legislature was the exclusive judge of this question. I will not refer ,to authorities on this 

subject, because there is no authority against that doctrine. There 

is no law for this assumption, and he who undertakes to say that we shall assume jurisdiction, undertakes to say that we shall make con- stitutions and laws. I would rather preserve what we have than take 

the chances of makin~ more without authority to do so. I will not 

be a party to the makmg of law when I am called upon, under oath, 

to administer law. He who denies that each house of a State legislature has the right to judge of the election and qualifications of its own members and their authority to vote, assumes an authority to make 

law. 

I concur with the Senator from New Jersey, [Mr. FRELINGHUYSEN,] 

that of all the organizations in the United States, we are the least fitted for the trial of such a case as this-for tlJe trial of a Senator for 

bribery. Our organization is least suited to such a case. While the 

Senator from New Jersey was speaking I was reminded of the history 

of the English Parliament in dealing with this samo question ; and 

altilough the Senator Rnbsequently informed me that he had not read 

that history, and did not have it in mind, still the tenor of his re- marks seemed enforced by the legislative enactments aud judicial decisions in England so clearly that it seemed as if he must be familiar 

with that whole history. 

They commenced, in the first place, as we are now commencing, 

without written law as to investigations of this kind. The lower 

Honse of Parliament then found that committees were so illy organized for the purpose of performing this duty, that they undertook to 

regulate the subject by law, and they passed various statutes on the 

mode of parliamentary inquiry, and almost all their laws were intended to confine the invest.igations to something Jike legal rules. 

'Whatever you may say of England, Englishmen are in favor of fair 

play, and they bate to convict a man unless he has had a fair hearing. 

They tried this committee business for centuries; they amended their 

laws; they amended tileir rules; they changed them one way and an- other, attempting to get at sometiling that would approximate a trial 

wherein the accused and the accuser could meet face to face; wherein 

the triers could see the witnesses and know the facts, and, after ceo- tudes of effort, in 1868, the Eng1ish Parliament arrived at a conclusion that committees were not the proper tribunals to try these qnestions. 

I bold in my hand an act of Parliament which refers these matters 

to the court-s. On the 31st of July, 1868, Parliament passed an act to 

increase the number of the judges of tbe courts of common law, and 

to allow thcjudgesthemselvesofthe (\OUrts of Exchequer and Common 

Pleas to select of their number certain persons betore whom these cases should be tried. Then it goes on to proviue that the person ac- cused shall have a trial, giving the form, &c. ; and, among the most 

important, that the charges shall be specified, and notice shall be 

given to him, and the party bringing tbe charge i!hall give £1,000 

hail to make good that charge. In order that there may not be sham 

charges brought, the party is required to give a bond of £1,000 that 

his complaint is made in good faith. Then it is bron<>"ht before the 

judge in open court, and the judge reserves questio;s of law that 

arise on the admissibility of evidence, which may be taken by writ of error to the court of Queen's Bench, so that the highest law-officers 

of the government may determine whether the questions are admissible or not. Then a report is made to Parliament, and Parliament acts 

upon that report. It may reject it if it chooses, but it bas the fact 

found, and the party accused is protected by a11 the forms of law, and 

1be accuser has all the forms and machinery of judicial proceeding 

to prosecute his inquiry, which I say is just aud right. That is wilat 

they came to after centuries of investigation. 

Here we have a report, the first one of the kind that bas ever been 

made in the Senate, which I regret that every member of the Senate 10 . . . . . 

has not read, and every lawyer in the country has not read. Let the 

lawyers of this country read that report, and if they do not say amen to the remarks of the Senator from New Jersey, I am mistaken in the 

judgment of the legal profession. If this report does not demonstrate 

and illustrate the inefficiency and the inadequacy of. a committee to 

protect the rights of· a citizen and to investigate a question of this 

kind with any degree of fairness, illustration is impossible; the 

imagination of man cannot illustrate it. The hearsay, the scandal, 

the irrelevant matter, the spleen, and hate breathing through this 

report in one incoherent ma8s, without index or reference, are laid 

before us, with no knowledge of the previous character of the witnesses, except as exhibited here, and we are asked to judge of these 

facts. What more! We are asked to pronounce judgment upon acts 

whiclilhave not been declared illegal, that have not been made crimes. 

I call the attention of Senators to this fact: that we are about to 

legislate as to what is illegal and what are crimes, and to pronounco 

acts to be so without any authority for so doing. England felt this 

difficulty. It is not a new question there, but Parliament never went 

beyond what had been denounced by law as crime in dealing with 

these questions. The American Senate bas never yet pronounced a judgment beyond the statute. We find in Parliament that from time 

to time they have increa.sed the number of acts which shall be re- garded as bribery. 

First, the statute is directed against bribery, as we understand it, or the promise of any valuable thing or any office. 

Secondly, it is directed against giving any meat or drink or entertainment of any kind to a voter; that is declared illegal and immoral 

by the statute. Parliament never undertook to pronounce judgment 

upon a case of that kind, upon the abstract question of morals, until 

there wa.s a law that preceded it. One thing may be said in praise of 

the _English government and those who have follo,ved in t.he course of 

the common law, that they want the law to precede their judgment, 

and they want to follow the law. Before they would say that it was improper to give meat or drink or entertainment to voters for the purpose of procuring their votes, they placed it in an act of Parliament. 

Thirdly, they provide that no force, or violence, or restraint, or threat, or intimidation shall be used. . Then they go on and provide against another thing, which you 

might not think was so bad. They provide against furnishing any 

inhabitant of any city, town, or place with a cockade, vr mark of distinction, or any refreshment, on the day of nomination or polling the 

vote, or of any appointment on such account, or on account of any 

cheering, bands of music, flagR or banners. They prohibit those by 

act of Parliament. These things are now regarded in England a8 

immoral, things not to be done. They were so regarded betore, but 

they passed a statute against them before they would take any action 

punishing for their commission. Is not that the fair way t Is there 

not some sense in that f 

They do more. They also appoint officers to see that the candidate 

only expends what be may legitimately; but they never punish him 

for expenditures for purposes that have not by law been declared to 

be crimes. 

I think the history of the English procedure is most instructive. 

We are called upon here to pass upon the quality of the act of using 

money at an election. Let us look at tilat for a moment, and I view 

it in the light of the English statute. It is perfectly safe, where we have got a statute declaring the use of money a cdme, to follow it; 

but, when we have got no statute, there will be as much difference of 

opinion as there are men as to bow much money may be used, an(l 

when it may be usea, and in what manner. It is undoubtedly troo 

that money is improperly used in elections. When you commence to use money to influence vo~es it is very hard to 1draw the distinction. 

It may be saicl that it is proper in the first place to hire persons to go 

outandcanva88 the voters and bringyoualistofthem; tofindonthow 

each one proposes to vote, so as to bring influen·ce to bear upon him. 

It may be said that it is proper to get up torch-light processions, and 

pay money for them. The English statute holds that it is not. It 

may be proper for you to treat your friends, or give them money to 

treat themselves, and let them have a good time. · The English statute 

says it is not; but it is done all over this country. It may be proper 

to hire friends to go and make speeches and influence votes in that 

way. Some may think that proper, and it is dono frequently. It may 

be proper, if you have got money enough, to buy the whole press of 

your State, and denounce every other man who presumes to be a can- didate as a rascal, and blacken his character and praise yourself 

through the columns of a bongilt, press, and thereby cripple and destroy the opposition, and ride into power as tht'l popular favorite. 

That has been done, and will be done again, very likely. 

Now, I submit, is not that act of the same character as the a-ct of 

buying oft' a candidate, when you bny up all the press, buy up all tile 

workers in the State in primaries, and go through that way Y If yon 

do not buy them all off; and only boy one, the moral quality of the 

transaction is the same. It seems to me there is too much money used in elections everywhere. I think I see enough in this case in Kansas to call upon us to 

say that there shonld be a remedy. Wbat is the remedy Y What 

should be done! Is there any remedy for this evil Y Yes; there is a. 

remedy, and that is iu calling tile attention of the country to it, am\ 

having a, better state of public opinion on the subject. There is a remedy in providing statutes against it the same as England has ~dopted. Conf:?ress ~!:! no~ ~e~t w~t11out ~ ':'E?~edr. Qon~e&s ~a~ re~-
146 CONGRESSIONAL RECORD. MARCH 21, 

ulate the manner of conducting senatorial elections just as it may 

regulate the manner of conduct~ng a congressional ele?tion. . I have in my hand an ~t whiCh denounces as a cnme any mterference with congressional elections or any bribery therein. Under 

the same language that gives us power to regulate the manner of 

senatorial elections, I undertake to say that Congress may pass laws 

denouncing bribery in senatorial elections, and may punish the bri~er 

and the bribee. They have undoubted power to do that. I thmk 

the time has arrived, judging from the condition of Kansas, which I 

shall allude to presently, for us to take action in a proper way. But 

those facts do not call upon us to violate the Constitution; they do 

not call upon us to destroy what we have that is good; they uo not 

call upon us to pass from mere judges, and become law-makers, and 

disregard our obligations to the Constitution and the laws. I undertake to say that it is barbarous for us, as juuges, to denounce acts as 

bribery that are not so declared by the statute. 

There are some remedies in this ca-se. Why have they not been 

resorted to in Kant>as f I hold in my hand a statute of Kansas 

pointed a(J'ainst bribery.. It is a well-drawn act. I will not read it. 

It is the 1~nal ~t a<Tainst bribery. If Mr. CALDWELL has been guilty 

of bribery, why has"'he not been indicted ~here! Hash~ no enemies f 

Has there been no effort to produce th1s book of eV1dence t Has 

there not been industry exhibited here-such industry as I never saw before f Why did they not resort to the remedies of the law which were 'before them T Why did they not go before the grand jury that 

had the right to consider this matter t Why come here Y If they 

had followed the constitutional mode, and Mr. CALDWELL had been .so unquestionably guilty ~ some Senators here ass~rt, w'?uld there have 

been any difficulty durmg these two long years m havmg that record 

heref 

Then we have already existing laws in Kansas against bribery. 

If need be, they may pa-ss more. Congress may pass its laws against 

bribery. The courts are open to try such a question, and if the 

record of conviction comes here, there is no Senator who would hesitateforonemomenttoexpelMr. CALDWELL. Let them bring the record 

of conviction here; let them do something analogous to what the 

English Parliament requires to be done in England before we are called upon to vote in a case like this. I am speaking now of expulsion; but both these propositions run upon the theory that something 

must be done, and done now, because here is a case that demoralizes 

the people. 

Senators, this question of trying a man on evidence is a serious 

business. I put the questions, Has every Senator read this testimony f 

Does every Senator know anything about it Y Is every Senator satisfied upon the particular facts f Is this case proved for any purpose 

beyond a reasonable doubt f Would you not feel better sa tis tied if it 

had boon tried by a court and jnry, and brought here in the usual 

form, and we had the record of that trial and conviction Y If it were your own case, would you not prefer to have a fair . trial by a court¥ 

Are we to try a man upon such testimony as this 'I If you do, on your oaths you have got to find affirmatively that Mr. CALDWELL is 

go ilty before you undertake to expel him; you must find that affirmatively from the facts as here reported. 

Now what are the facts f I wish to call the attention of the Senate for' a few moments to them. I do think this is the most remarkable case that has ever come before 1,1s. The committee, after discussing the contract with Carney, and referring to the testimony of .Mr. 

Spriggs, who appears to be the principal witness, say: 

' 

The testimony of lli. Spriggs is very full, and shows that the canvass of Mr. 

CALDWELL was thoroughly corrupt, and that mo~:ey was the chief argument relied 

upon. Among many other things, be stated that '1'. J. Anderson told him thnt he 

bad paid Mr. Crocker, a member of the house, $1,000 for his vote; that M1·. Crocker 

afterward backed out, and banded the ruoney over to a Mr. Carson, to be returned to Mr. Anderson; tbat Carson got on the cars, went home, and kept the money. 

Carson was afterward called by the committee and corroborated the statement, 

admitting that he bad received the 1,000 back from Mr. Crocker' to be returned to Mr. Anderson, but that he had kept the money himself for his services to Mr. 

CALDWELL. Mr. Carney testifies that, in an interview with Mr. CALDWELL, after 

the election in which he waa urging him to procure an appointment for one of 

Mr. Carney'~ friends who had voted for him, Mr. CALDWELL took from his pocket a memorandum-bookJ and appeared to run over a list of names, and coming to the man referred ro, saia, " That man has been paid; " ancl Mr. Carney understood 

from his manner that he had in this memorandum-book a list of members with the sums paid to each ; that Mr. CALDWELL told him upon another occasjon that he 

had paid Mr. Bayers the sum of 2,500 for his vote, and Mr. James F. Legate the sum of $1 000 for his vote. Mr. Anthony also swears that in a com·ersation with 

Mr. CALDWELL that gentleman admitted to him that he had pai<l $2,500 for the vote of Mr. Bayers. There is much testimony showinf" that Len. T. Smith, Frank 

Drenninf!, James L. McDowell, George A .. Smith, am T. J. A.nd!'lrson, am~n~ the most active frie11ds of Mr. CALDWELL durm~ the canvass, adnu.tted at difforent 

times that they had offered money to members of the legislature to vote for Mr. 

CALDWELL, in some cases specifying the members to whom it was offered and paid, and in other cases that offers han been made that bad not been accepted, and that 

negotiations were on hand with others which bad not been COmJ?leted. These men have denied before the committee all conversations and admissiOns of this charac- ter and all payment of money to members, or offers t.o pay them, and several mem- ber's of the legislature who were implicated have expressly denied that they re-· ceived the money or that offers were made them. 

This is their summary of the testimony. Upon this testimony fonr 

members ·of the committee believe that there was bribery in the case; 

they do not find .Mr. CALDWJ<:!LL guilty of it, but they find bribery in 

the case; and three members of the committee dissent. It seems to me that is enough, without going any further, to raise a doubt., and a pretty substantial doubt, when three members of your committee 

dissent from tho finding. But we are not left to that dpubt. It is 

necessary to inquire who a few of these men m:e and .how tht~y carne 

· here, and I wish to take up a few of theseleadwg witnesses, so that 

the Senate can form somet.hing of an idea of their motives. I want 

to show the Sonate that they cannot form a sufficient. idea on this 

testimony to do justice, but I propose to refer to it so that they can form something of an idea. 

Who is Mr. Carney Y Mr. Carney is the man who received the 

15,000. .Mr. Carney was a. leading man in Kansas. He bad been gov- ernor of the Stat.e. He was a prominent man. there. He was therecipient of the money under the bargain that makes my friend from 

New Jersey shudder to think of, and that makes his vote han•., iu 

the balance whether he will not vote to expel Mr. CALDWELL tor that 

act, althou~h tho act has not been denounced by any statute on the 

bookM. It 1s a:n a~t ~o criminal per se that the Senate is deliberat.ing now whether 1t will not expel Mr. CALDWELL for it, although tht•re · was no statute to make it criminal; an act which we are now discnssing as to whether it is not so bad that we will expel Mr. CALDWELL for 

being a party to it. Mr. Carney was a party to that act, and he was the recipient of the money. There may be no difference between the 

briber and the bribee in law, but everybody knows there is in the 

estimation of society. A man who will sell him elf for paltry gold is meaner than the man who bnys him. So society bt'lieves. Iu law, 

the crime is the same; but in grade of morals everybooy knows that a man who will receive money for doing a dirty thing is lower in the 

estimation of all men than the man who pays it. I am not referring 

to the buying of an ignorant man, but to the buying of a man like 

Carney, who bad been governor of his State. 

What else did Mr. Carney do f He not only took this $15,000, but 

he went to Topeka. The hcadq oarters of the lobby there were in his room. He was familiar with every transa-ction, and testifies about 

them in great detail. He does not tell you that be protested against 

the proceedings. On the contrary, he was the head and front, the 

leading friend of CALDWELL in the affair. If this ~t be criminal, 

then tho statements of l\lr. Carney, without regard to it, shonlu bo 

taken with some degree of allowance. If there was wholesale bribery 

of the legislature, the statements of the man iu whose room it was done shoul<l be taken with some degree of allowance. The law has 

guarded against that kind of testimony, and the law is a safe guide 

to follow. It is one of tho fundamental principles of law that this 

kind of testimony shall be taken with great caution. 

I am now discussing it on the hypothesis that the report is true, 

t.hat these acts were criminal, that there was bribery, or that the acts 

werA so utterly disgr~eful that we are called upon to pronounce the 

law in advance upon them. If that is so, Carnoy is the beau and 

front of the whole of thorn. Greenleaf on Evidence lays down a rule 

like this: 

But here, also, as we have before remarked in re:;tard to admissions, the evidence 

of verhal confessions of guilt it~ to be received with great enmion. lfor, besides 

the danger of mistake, from the misapprehension of witnesl!es, tho misnse of 

words, the failure of the p:n·ty t.o express his own meaning, and tho infirmity of 

memory, it should be rocolJt>cte<l that the mind of the prisoner himseu· is opprPssed 

l.Jy the calamity of his situation, and that be is often influenced by moti \OS of hope or fear to make an untrue confession. _ 

That is in regard to the confeRsion of a criminal. It is not the 

quotation I intended to read, but it is applicable to this case, because 

it is all made out by the confession of CALDWELL, dt~tailcd to ns by 

Carney. That is the substantial part of it. 

Now let us look at the next witness, and the one who is put in the 

foreground in this report, and that is Spriggs. Who is Spriggs f 

Spriggs was a friend of Carney's, and when Carnny swore that C,u.n- WELL wa.~ a good man to make Senator, Spriggs re-echoed the same thing. Spriggs was then for him. He went to Topeka to work for 

him. He was a member of the committee which it was said was formed, and he swears that he participated in the whole thing as a friend of Carney's, or at the solicitation of Carney, and llelped to 

make the fight; but when Carney tnrus against CALDWELl, and comes here to denounce him, Spriggs does the same thing. He appears 

Rimply a.s the shadow of Carney. Spriggs rroes on to say that it was after Carney had invited him to do so, and after consnltation with 

and at the request of Governor Carney, that he snpporteu CALDWELL. 

So that in realit.y t-here was but one man. Spriggs and Carney aro Carney alone. They arc one. Now we come to Sidney Clarke, the prosecutor in this case. The 

important part that Sidney Cla.rke ha-s played in this transaction is 

illustrated by the committee. They say this: 

Mr. Clarke wl\s unwilling to admit t.hat he had mado an agreement to tronRfcr 

his friends to Mr. CALDWELL in consideration of the latter's promise to pay this 

monosThat is, 15,000 to be paid to secure the friends of Mr. Clarkebut taking all the testimony together, the committee have no doubt that the trans- notion between him and Mr. Clarke was as has been stated. Mr. CALD\TELL'B subsequent refusal to pay the monoy to M.r. Clarke does not relieve tho character uf 

tho transaction, and very probably resultoo in the exposure of Mr. CALDWELL and 

the inRtitution of this examination. 

The committee themselves say, and there is more testimony to support that alle<Tation than any other, that this investigation is urougb t 

here because CALDWELL refused to pa.y Clarke 15,000. That is the way 

it came here. That is the way the exposure came out. Do you want a better commentary upon the character of Clarke than that Y Could 

I sa.y anything as severe of Clarke as this committee has done i Is 

it possiule that a man who has been a member of Congress, and has 

been recorrnizecl as an honorable gentleman, antl has been tt·n8tetl by 

his State, ~hould be iufl.nenccd by such a motive Y The committee find, 

aull the tcstimouy shows, that he instigated tllis investiga.tion IJe-
1873. CONGRESSIONAL RECORD. 147 

cause Mr. CALDWELL would not stand this black-mail. What does Mr. 

Chtrke say with regard to it f H e says that after the decision of his 

friends had been made that he WM not to be a candidate, that he 

could not succeed, Mr. CALDWELL proposed to pay his expenses, and he 

indignantly refused; that he made no such arrangement; that be bad no power to make any arrangement to help CALDWELL; that his 

friends left him and he had none; but that he told CALDWELL that 

Stevens wa-s a. friend of his, and that Stevens and CALDWELL had some arrangement. He admits that he came here and attempted to 

collect money under that arrangement, a.nd finally admits that he was to have the money himself. That is the testimony. Clarke swears in the first place that he had no contract with CALDWELL, but had it 

fixed up by a go-between, and because CALDWELL would not come out 

with $15,000, we have this prosecution. 

These are the three leading men in the transa~tion. There is one other-Anthony. Let us look at Anthony. Anthony was a life-long 

enemy, as he himself admits, of CALDWELL. What does Anthony 

say f 'rhat he had conversation with CALDWELL about supporting 

him. Anthony was a newspaper man, and he says that CALDWELL 

offered for his support t.o pay him after the election $5,000 ; that he 

refused to take the $5,000 on tick, but if CALDWELL had paid him the 

$5,000 he would have supported him. He says he wM willing to 

negotiate for $5,000 to support CALDWELL. So that, in slang language, he waa ''on the sell," and wanted $5,000, and would have 

supported CALDWELL for that amount. There yon can see the ma- lignity of this man. It is a mistake to say that Anthony corroborates the statement of 

Carney as to the transaction with Bayers. The report says that Anthony testified that CALDWELL a-dmitted to him that he had agreed to 

pay Bayerlil $2,500, and that Carney stated the same thing. Carney · dbes state that. Anthony does not state it. Anthony, in an angry 

conversation with CALDWELL, told him that he hMl raised the price 

of Bayers on him. by telling Bayers his vote was worth $=i,OOO and insisting that Bayers should demand $5,000 ; and all the evidence shows 

is that CALDWELL denied that he had raised the price on him, from 

wbicb Anthony inferred and testified that the price was $3,000-not 

$2,500, but $-3,000-becanse CALDWELL denied what he said, that he 

had raised the price on him, aud then he said that the price was what Bayers stated to him-$3,000. That was the admission of CALD- WEI~L, and that is put in as a corroborating circumstance to sustain 

Carney upon the only point on which he is not contradicted. On 

every other one he is contradicted. 

This testimony comes to us in thiEf way. The men who testified 

to it were a part of the lobby. If there was money distributed, they were tho men who distributed it, who saw it and knew it, and were of the transaction. They implicate a large number of persons in this 

transaction; men that we have no means of knowing how they stand. 

They deny it. It is Paid by the committee that the parties inculpated 

deny it. Here are A, B, and C, stating that they were a. part of the cor- rupt transaction, that they were lobbying, that money was used, that 

they were engaged in this fight, that they were helping it through, 

all exct~pt Anthony. He did not. engage in it, but wa.s willing to do so for $5,000. All these men, we know from the testimony, were en- gaged in these transactions. They I:V'..cuse CALDWELL and many others, a.nu :Mr. CALDWELL and the others deny the accusations, and but a b:ue 

majority of your committee believe them. · Now, can you say in this condition of things that a case bas been 

made for the action of this Senate for expulsion 7 I do not believe 

there is a Senator who can say that npon this question of bribery Mr. 

CALDWELL has had a fair trial. I do not believe there is a SeuatQr 

here who will not admit that this book is full of hearsay and irrelevant testimony. I do· not believe there is a Senator here who will 

pretend that as to any particular CaBe the facts have been developed so that he undcn·tands them; and, remark, bribery must be proved; 

it cannot be presumed. I do not believe there is a Senator here who can say it is proved in a single instance. It is simply assumed without proof. I do uot believe in establishing a precedent whereby a question of this kind, that is so peculiarly within the jurisdiction of a court and jury to find the facts, where all parties can be heard, 

should be brought here and be disposed of on hearsay testimony, and 

broucrht here by men who were engaged in the transaction and got 

mad because they did not get more ruoney, and who then undertake 

to unseat this man for that reason. There is testimony in this record 

that Governor Carney threatened to unseat Mr. CALDWELL for griev- ances. There is much feeling on his part. There is testimony in this 

record with regard to Clarke that he came here to get $15,000; and 

the committee report that because he did not get 1t, he instigated 

these proceedings. He appears as a witness in many places in thi~ 

record. There is testimony in this record that every pwminent wit- ness on whom any reliance is placed was a mere particeps m'iminis if 

there was crime, and is now testitjring against his associates. '..Phat 

is the condition of things. I do not say that that should exonerate 

CALDWELL, but I do say that it ia a case that should be tried by a. jury who know the parties. I could judge of this better if I were a Kansas man. I should liko to hear the Senator from Kansas who is 

not implicated in the matter give us some statement as to the character of these men. I hope we shall hear from biro, so that we can judge of their credibility if any Senator is inclined to vote upon this 

evidence. 

Remember, Senators, if you vote to expel this man, or put him 

out in any way, you ~ust vote affirmatively on t~e ~~~s ~ep~ r.re: 

sentecl. I undertake to say that there is no finding. in the record, 

except in the caae of the trans~ction with Carney, upon which a fairminded man can say that he ie satisfied. All this illustrates the wisdom of the position of my friend from New Jersey, [Mr. FRELING- HUYSE~,] that we should not seek for jurisdict.ion in such matters; we should not seek for investigations; that we should confine ourselves 

to the duty which the Constitu tiou has imposed; that we should not 

seek to enlarge our jurisdiction to do a thing that we are doing so badly. In the length of time that we have spent in this case, if 

it were before a court and jury, with the witnesses before them, so that the jury could seo them, there would have been more of the 

merits of the case developed in one day th~n we have developed altogether. 

This money transaction in connection with the election is certainly 

Tery bad; it certainly calls for the action of Kansas; it is certainly 

immoral; it calls fo:r the action of the legislature to pass further 

laws; and I believe it calls for a law of Congress; it calls for public 

opinion to stop it; and it calls for laws to stop other acts in regard 

to the use of money in elections; it calls for a stop being put to the 

extravagant use of money for any. purpose. I say that too much 

money ie used in America, too mnch is collected, too mnch is contrib--

uted. We are too ar.t to say that Mr. A. T. Stewart or some other great 

merchant has contributed largely to calTy the party through a cam· paign. We are too much inclined to praise them for these things. 

The highest men in the country contribute money to carry elections, 

and their names are ostentatiously paraded in the public press as benefactors. There is too much said in favor of that practice, and 

not enough against it. Money will be used while public opinion tolerates it, while the press lauds those who contribute largely, and 

while it is the road to power. Can you be surprised, while the high 

and the low mark this out as the road to power, that a merchant 

inexperienced in politics, who has been a business man all his life, 

who sees that these large SUlJlS are contributed, and that those who 

contribute them receive praise, should think that money may be 

used, and so fall into the trap Y Let those who are wiser, those who 

have ha-d more experience in politics, than CALDWELL, ceaBe to collect 

money, and to use money at primary elections, which is worse than. using it on Carney, because there you deal with a different class of men and corrupt them. I do not think Carney himself was much worse after this transaction than before. He understood the act very 

well. But I say buying up the people, using large sums of money by . which to corrupt the masses, is worse than this Carney transaction. 

In some respects this matter of Carney's is not so bad. If he had any 

cb:otnce of being elected tQ the Senate, CALDWELL has half redeemed 

himself even with money by keeping Carney out. 

Buying off rival candidates will never prevent a good man from com- ing to the Senate. But yon have made, and your public press makes, an ostentations parade of the use of money. You call for it in your 

political committees, and you use it to carry elections, ancl. I say the 

time has come when it should be stopped. There is no use in making a scapegoat of CALDWELL, or any particular man about the business. 

The whole system of using money should be stopped. Do as the English Parliament did when they found that the use of money was demoralizing. Did they punish a man for it because it was demoralizing' No; they passed a law against it, denouncing it as a crime, 

-and then punished a man if he violated that law. They passed no e:c postjacw law. 

While the use of money is sanctioned in general elections, ambitions men will use it land it is no worse to use 40,000 or $50,000 than 

$10,000 or 5,000 or ~1,000, if it accomplishes the same purpose and 

gets a. man into the Senate. No matter whether it is used outside of 

what is denounced as bribery by the law-it is no matter where you use it, if it accomplisheS that same purpose. Use it on t.he press, and 

you will be regarded aB a great patriot, be lauded every morning, 

and hear your editors praise you, and be happy, and say yon are virtuous. Use it on the masses, and pay workers to go around and sing 

your_ praises; pay it to eloquent orators, and send them forth for the 

purpose of bringing votes to yon, and no complaint is made. 

I do not mean to say, nor has the English law said, that there may 

not be proper uses of money, that expenses may not be paid, ann there 

should be some understanding about it. I do not say that you may 

not contribute to men who are giving their time to elections to pay 

their expenses when they make campaigns. But the idea that mone~ 

may be used in any way, that it may be usetl on the press in any way, 

that it ruay be used on workers in an election, that if; may be used ort 

primaries, and that hundreds of thonsands of dollars may be used in a campaign, and that it must be used, and that men who do not con- tribute are mean, is to bo condemned. Anyhody that does not think 

such practices will produce just such a case as this of Mr. CALDWELL 

does not know the American people. Public sentiment must he 

changed on this question; but there is no use in hreaking down the 

laws of the country ; tbero is no use in making another Constitution ; 

there is no nece~si y to say wo will not ouey the law as it is written. 

At the next session of Congre s we may pass a law again.st brihery. 

Let that be discussed and. passed, anclit will havA this effect; and t 

the press pt'oclaim agatnst.the use of money at·an iii olectious. Lot 

those who are strong and populai· in the ir &tates' ·and havo ·ueen honored by their con ti en .~:> stand up and say that they will not con- tribute anq that money shall not be contrilmted t.o their olection, antl 

that they will not have an election if money is useu. Let an effort be 

. m~de ~u t~e ri~ht (V:e~t~q~. ~ut ~o accom~lisq t~is !.o~ qo ~ot '\YS;~t 
148 CONGRESSIONAL RECORD. MARCH 21, 

to convict a. man on doubtful testimony, you do not want to convict a man by the assertions of co-conspirators tllat ho bas committed a crime, and that upon hearsay which is denied by a large number of 

citizens, and you cannot tell who is the most trustworthy. Do not con- vict a man for using money in the same line and where there is no moral distinction Letween what be ha.s done and whn.t others have 

done; but uo as bas been done since the common law has been in force: 

if there is an evil that is likely to demoralize the country, proclaim 

against it, legislate against it, and then enforce your laws, and you can then act as honest judges, men who can say, ''We have administered 

the law." What Senator here, upon hearsay t&~timony that he never heard, that is reported in this book, full of spleen and malice and selfishness and spite; what Senator, I say, can take up that book and say, 

"Upon that I will pronounce judgment upon thiA man; I will convict 

this man because politics are getting too corrupt f" What Senator can say that and reconcile it t.o his conscience T I tell you, fellow-Senators, 

that CALDWELL has only done in a little exaggerated degree what is too 

prevalent in this country. I Lelieve that the American people are going 

to be waked up to this question of using money in elections. I believe 

it must and will be stopped. I believe the time will come when it 

will be regarded improper tor a candidate for the high place which we occupy to pay so much attention to primaries and pay so much attention to conventjons, to pay so much attention to details, to make so many promises of appointments to office, to hold out so many inducements. I believe the time will come when such means and the use of 

money will be condemned. 

I think that the CALDWELL case will not be without its good effect. 

1 think the malice of Clarke and the vengeance of Carney will do some- thing to clear the atmosphere; hut I do not believe it will make us pass 

the resolution of this committee in violation of the plain law; I do 

not believe it will make us pa.ss a resolution of expulsion upon doubtful, hearsay evidence, when we read in the Constitution that no man shall be convicted without due process of law. We remember that a fair trial has been the pride of our race from time immemorial ; that a fair trial is the boast of.Americans; that we have provided for it in our Constitution; that States put the principle in their constitutions. 

Shall a Senator of the United States be denied a fair trial f Shall he not 

be confront.ed with his accusers, the jury that are to passu pon the facts f 

May not that jury see the witnesses T Must he be tried on depositions Y I say that fair trials are the boast of our free institutions. -Let us preserve that; it is useful; let us preserve a system of fair play and 

fair 1il:ial. It is useful. If Kansas believes this man guilty of bribery, 

she has it in her power to senu us a record at the next session upon 

which there will be no doubt. 

But what do the committee say T They say this man was as mnch 

sinned against as sinning. What! a man who is to be branded as a felon, and expelled from this presence, and carry the mark of Cain 

through all his life, as much sinned against as sinning f I want to vote 

against a man who has sinned more than be bas he~n sinned against. 

I want to•vote against a mao that has sinned more against the laws 

and the Government of the United States than he has been sinned 

.against. If he is a criminal, if he baa committed bribery, why talk 

about sinning against him t Why talk of sinning against a man with 

sufficient intelligence to hold a place in these halls, or to get here Y 

Why talk about sinning against him if be is guilty enough to expel 

from this presence? If I am called upon to vote on the question 

of expelling any man from these halls, r will obey the laws and my own conscience. I will not, by any outside pressure or influence, 

vote to expel a man that I am not satisfied beyond a reasonable don bt 

is guilty of the offense. I think the rule suggested by the Senator 

from New Jersey was admirable. I think the question of expulsion 

should never be considered except upon a record of conviction, or the 

notorious fact of committing an offense upon which there could be uo don bt. I think that one or the other should occur, and that we should 

not usurp jurisdiction in a doubtful case when we do not have the wit- nes es before us; where there is nothing like a fair trial ; where not 

half the Senators have read t.p.e testimony. I tried to read it twice. I cannot judge of it as I would if I saw a single witness. I kuow 

that it has embarrassed the committee; it has d1vided them as nearly 

equal as they could be. 

This is not the case for such a sacrifice. I believe, as a lawyer, that 

before any court, upon this testimony, with twelve honest men in the 

box, I care not what their feelings might be when they entered the 

jnl'y-box, they would acquit. I would undertake to defend upon this 

testimony; there would not be mnch of it in, I know, because most of 

it would not be admitted ; but for what legal testimony could get in before a jury, I do not believe they would be called upon to leave 

the box. I have had some little experience in trials by jury; I have 

acted as prosecutor, and I have defended; but never in my lite did I 

hear a proposition like this advanced as in the case of Spriggs's testimony. He is called to prove the declarations ofT. J. Anderson. The 

foundation is laid by asking if Anderson was a friend of CALDWELL. 

The witness testifies that Anderson was a friend of CALDWELL. Then 

they go on and allow him to say what this other person, Anderson, 

CALDWELL's friend, said; these statements are allowed to be given in 

eviuence-conversations between third parties, with whom CALD- WELL had no connection. The fact that he is a friend of CALDWELL is sufficient to make his declarations evidence. Three-fourths 

of the whole book is from declarations received from men who qualified themselves to testify by swearing that the declarations they were going to detail were made b! a friend c;>f CALDWEI L~ It may be wo.ll 

to look at a single case. If I can turn to Spriggs's case, I think it will 

illustrate the whole matter: 

. Question. Now, Mr. Spriggs, st.ate to the committee what you J..11ow, if anything, m ren-ard to the uae of money, or other cotTupt means, on the part of Mr. CALUWEJ,L to procure l!is election. Answ~r. P ernonally, I don't know anything directly of my own knowledge. 

Quest10n. Let us sec !J.ow, when you come to it. What do you know about it i 

An!!wer. All I know ts what other men told me who talked about it. 

Question. Whom did yon l!ave conversations with in regard to it 1 

Answer. I bad conversations with quite a number of men- with George Smith, 

that these other gentlemen have testitied about, and Len. T. Smith. 

Question. What was the conversation with George Smith about 1 Answer. It was in regard to the election of Mr. CALDWEr.L. 

Question. Was it in regard to the use of woney1 

That is not leading, of course! 

Answer. Yes, sir; some of it was. Question. In what capacity was George Smith there 7 Answer. George Smith was there \\·orking for the election of Mr. CALDWELL. 

Question. Was he a pt·ominent friend of Mr. CALDWELL 1 

Answer. He was a very active friend, I will say. Question. Was he recognized there as one of Mr. CALDWELL's active friends f Answer. Yes, sir. 

The CHAlllMAN. Now it will be for the committee to say whether a fonnlla.tion is 

laid for intro•lucing Mr. George Smith's statements, taken in connection with whnt 

has been &aid before. 

rJe~~~~estion being put, the committee concurred that the statement should b6' 

They got a heap of testimony in that way. He was known as an active friend of CALDWELL. Where does this come from f From 

Spriggs-Caroey's man Spriggs-who was a friend of CALDWELL when 

Carney was, and an enemy of CALDWELL when Carney was. Do you 

want that for a. precedent to try a man by f Do yon want moo to come here, and have one loafer swear that he heard another loafer 

say something-if they be loafers ; I do not say they are. Some of 

them showed themselves to be pretty rough characters. There is 

Carson, who figures largely in the report. He ~ot a thousand dollars 

to give another man, anu put it in his own pocket l Such men have 

conversations among themselves of which 1\Ir. CALDWELL knows noth- in~, yet he is to be held responsible for such idle or vicious t.a.lk. 

The idea of the Senate bemg competent to tr:v any such proceedino- as this is utterly out of the question; you cannot got at the truth of 

it. You violate law and your own conscience by trying to get at it 

in any way, and it will degrade yon to put t·his man ont in this way 

when every soul in Kansas knows be is a better mao than any one of 

his persecutors. 

1\Ir. ALCORN. Will the Senator allow me to call his attention to· 

a page of ~estimouyf H;e seems to be at a loss for any testimony 

upon the pomt. I ref~r h1m to page 380. I read from the testimony 

of Chester Thomas, who was not a member of the lecrislatnre. The 

qne tion was asked him," 'Vere you authorized to negotiate for Mr. 

Steele's votet" Mr. Steele being a member of the legislature. He 

said he was. Then this followed : 

Question. He authorized you to negotiate for his vote 1 

;A.ns'Yer. Yes, sir; he offered I! is vote; we had a talk about it. I got acquainted 

with htm btifore the first ballot. He said nothing about ue~otiatin~ hi~:~ vote for money before the first ballot. I think I got acquainted with 11im at Mr. Clarke's room. He introduce•! himself as cominl{ from ~bo adjoining connty in P ennsylva- nia to where I came from. I introduced ·him to Mr. Clarke before any ballot. De- tween the ballotings he ufl'dred to negotiate his vote. He said they were sellinl7 

their votes for money, and he might as well put in as a11yhotly. "' Question. Diu you have any conversation witl1 -Lon. Smith about it 1 

An>:~wor. I went to Len. Smith aud Mr. McDowell, and I may have spoken to 

others, but them in particular. 

Question. What uid you say to Lon. Smith or Mr. McDowell 7 Answer. I think the first I said was somethin.!! like this: to ask if they want ed mor~ vot~. 'l'hey said they _ilicl, and then I told them my bnsincss, nnrl Len. Sruith, I thmk, dJd not stay or remam long at the time at all; I think l!o turned around 

after I told Wm what would be required for a vote that was opposed to Mr. C.AT.D- WELL. Question. Wlmt did you tell him wonltl he required 1 

Answer. Eight lmnlired dollars. Mr. Stet:le bad asked a thousand, but be had 

agreed to el300 before I went away Question. Did you tell him he could have 1I:r. Steele's vote for 00 7 Answer. I did not muntion Mr. Steele's vote at alL 

Question. Well, the votf\ of a member. 

Answer. I told him a meml>er that had opposecl themQuestion. Would vote for Mr. CALDWELL for saoo' 

Answer. Yes, sir; through to the end. 

Question. What did he say 1 Answer. Mr. Smith turned around and said they could get all the votes thoy 

wanted now, as though they were confident; he saitl they could _get all tho votes they wanted for 500, or in snbstance like that. Then I t..'l.lkcd with Mt-. McDowoll a little more by ourselves. 

Question. Did Mr. Smith go out then I 

Answer. lle tnrned around ; be was in a crowd. 

Question. Did heJeave you in conversation with Mr. McDowell 7 Answer. Yes, sir. 

Question. What did he say 7 Answer. In talking over he seemed to want to know the name. I did not tell any name. I do not think he inquired directly for it, but before he ~ot throu..,h 

Steele's name was introduced, and I catched at it in a moment ; I saw m a mome~t by the expression that be had been treated with. I did not still mont.ion his namo. I kept it entirely back. I listened to it and ascertained that he was committed to Mr. CALDWELL, and that be had received the money. 

By Mr. CARPE!'ITER : 

Question. What did he say 1 Answer. I cannot tell; onlv I became satisfied from the conversation that he was co=itte•l, and how much money be ha.U1 and that he had not voted as h& agreed. 'Ve diu not dwell long after that. 

By ti.Je CHAIRIIIAN: 

Question. You said that Mr. Steele barl not voted a.s he agreed' 

Answer. Ho bad not votecl as be agreed to at alL 

Qurn;tion. When diu yon ascertain that f 
1873. CONGRESSIONAL RECORD. 149 

Answer. While talking with Mr. McDowell there. 

Question. What did .Mr. McDowell say about it~ Come as near as you can to stating what be said. . Answer. I do not think he talked very plain, only that Steele was their man, and 

he complain eel of his not voting as he agreed. Question. Did he tell you or give you to understand from his conversation that Mr. Steele had received money l 

Answer. I understood it distinctly, that is, to my own satisfaction, while he did not say bo ~ave it to him, or thia, that, or the other amount; but I learned that he 

had given lum the amount. · Question. How much J Answer. Just $500; and as soon as I learned that', we separated pretty quick. We did not talk a great deal about it afterward. I learned that--

Question. This conversation occlil'red between the two vot-es 7 Answer. Between the two ballots. 

Question. Was it the evening before or the morning of the joint convention 7 .Answer. I should think it was the morning of the joint convention. It might 

have been in tho ovonina; I rather think I met him twice. 

Question. Was that all that passed between you and Mr. McDowell f 

Answor. Yes. sir; we wero together some little time. 

Question. Did you see Mr. Len. Smith afterward in regard to it I 

.Answer. 1 do not think I did. 

Question. Did yon have any conversation with him about it 1 • Answer. It strikes me that the name of .Mr. Steele came up that day some t1me 

with .Mr. Smith-! do not know but it might have been Mr. McDowell-and he 

thought he would vote right in the end. 

Question. Which waa it, Smith or McDowell, made that suggestion t Answer. I cannot tell. It was my impres8ion, and I have thought of it considerably since, and am inclined to think it was Mr. Smith. 

Question. Did Mr. Smith state that he thoughtMr .. St~le would vote for Mr. CALDWELL in the end 1 Answer. It might have been after this. 

Question. Was there any reference in that conversation to the fact that Mr. Slieele bad been paid 1 Answer. I learned it t() my satisfaction that he bad been paid, and the amount. Question. Was thoro any reference in that last conversation, which yon think was with Mr. Smith, to that subject 1 Answer. Not any to money. Question. When be said he thought he would vote for Mr. CALDWELL, was there any reference to money I Answer. I do not think there was, but the question of his final vote was men- tioned incidentally. Qnestion. After you had learned from Mr. McDowell, as you thought, that 

Steele had received $500, did you g back and talk with Steele f 

Answer. I did dit·ectly. 

Question. What did be say 7 Answer. He said, "I tQld you not to mention my name." I answered, " I did not mention your name at all, Mr. Steele; I was very careful;" and I talk~>.d to him, maybe, with a little warmth. 

By Mr. CARPENTER: • 

Question. Tell the conver ation. 

Answer. I says to him," Yon are already sold; you have got the money in your pocket, and you have not voted as you agreed to." 

By the CHAIRMAN : 

Question. What did he say 7 

Answer. I cannot tell you much about it. I guess I repeated this right along. He made this reply: "I told you not to mention my name." That is as I remem- ber it. 

QnestJon. Did he deny that he received the money f 

Answer. He did not deny it at all nor acknowleclge it directly. He turned and 

said, "I toldlon not to mention my1.name." 

Question. nd yon said yon bad not t Answer. I said, "I did not mention your name, Mr. Steele; your name cam~ up, and of course I listened t-o it, and I kn'ow you are already sold, and, sir, this is no way to do business." 

Mr. STEWART. That illustrates it perfectly. In the :first place, 

it is not very reasonable that Steele would engage him if Steele was alreac.ly bought. This man tells his own story. Who is testifying 

falsely T Does anybody know who Chester Thomas is, or what credit 

hA is entitled to! That is the kind of evidence presented here. You 

prove that CALDWELL is guilty of bribery by a conversation between 

Chester Thomas and Steele, wherein he swears Steele\JSent him and 

he went to Len. Smith, who i& alleged to be the principal man in 

the transaction, and he put him off with a casual remark that votes were not worth more than $500. Could you tell whether that was a mere bluff remark of Len. Smith's or what he meant unless you saw the witnesses on the stand and saw their manner f Len. Smith does 

not negotiate. He goes there and gets foiled. He has told this story, 

and he comes here and tries to make it good by hearsay, with which 

CALDWELL is not connected in any way. Now Mr. Steele comes forward and denies the whole transaction. Here is his testimony denying it under cross-examination. I do not know who Mr. Steele is. 

Mr. Steele may have been a great deal the better man of the two; 

and when on the stand he denied it all. Now, how can you predicate action upon that¥ You have not connected GALDWELL with it; 

it was a conversation among others. It was a conversation on the 

part of a man who commenced to do dirty work. Who was Mr. Chester Thomas' Who has he written hiiDBelf down to be in his testimony! A briber-a. negotiator for bribes. He says that Steele came to him to negotiate his vote; he went and attempted to do it. 

I am stopped in this argument that thls testimony may be produced, and it is the best you can produce-a man that is referred to 

here confessing himself infamous. If what he says is true be could 

be convicted of attempmng to bribe under any decent statute of any ~ountry covering the ordinary cases of bribery. He is the agent of 

Steele to get ll bribe for Steele; he gets bluffed and comes here and 

condemns the Senator. That will not do; that is "too thin;" that is 

sorry stuff. Come with one decent man who knows the facts, come with one man with clean bands before you lay bands upon a peer in 

this body. Let something come from some man who was not engaged 

iu bribery or black-mail. If Chester Thomas would be the agent of 

Steele to negotiate his vote, he would be the agent of any conspirator to drive CALDWELL from his seat. If upon such tra..sh as that a Senator is to be accused, if that is evidence, beware that evidence be 

not manufactured in your own case that it is reported that members 

of the lobby are selling every day all hands, men that they dare not 

speak to; and when they are enga~ed in that business their conver- sations and declarations are certamly valuable. I know a very re- markable ease; my friend from California will remember it well. 

We bad in California in early times, when I was a citizen of that 

State, a judge of great ability. He had his faults. He was a generous, strong man, who dealt out the law with a degree of power and 

fairness that made him a great reputation. There was a certain 

broker who was in the habit of selling him. He would sell him to 

both sides. He was supposed by the judge to be a man who had 

nothing to do, and who was harmless. He would go to one side and 

say," Now, for $1,000 or $5,000 I think I can help you; and if I do 

not succeec.l I will not charge you anything." He wonld make the same arrangement with the other side. Then the case would have 

to be decided one way or the other, and be would go and collect his 

money from whichever side won. He kept that thing up for years, 

and :fiually he died suddenly. From his papers these facts appeared. 

This business continued up to a time just previous to his death; and 

the judge bad come to be regarded as corrupt by the people. These cases bad been talked over, and his reputation was very much injured. I met him frequently. He did not know why people talked 

about him as they did. In fact, the members of the bar did not know 

where it came from. They would argue their cases before him with no want of faith. The man would never go to the lawyers; he would 

keep away from them ; but be went to the clients. This sapped the 

judge's reputation, and but for the accidental death of that man, and 

the uncovering of his papers, that jndge would have gone down 

branded as having been bribed in all those cases. It is very easy to get up outside conversations and implicate the 

cbarMter of any man. I tell you, beware of hearsay. I tell you that 

it is not enough that a II!an says that this man's declarations that he 

is going to testify to shall be received to brand a Senator. Suppose a ca..se is being investigated of the misconduct of a Senator on. this 

floor. A witness presents himself and says that John Doe made such 

declarations. Who is John Doe f A friend of the Senator. Can he 

then go on and repeat the statement f But the ease whlch the Senator from Mississippi puts is the ease of a self-convicted criminal, a man who has no more sense of right or decency than to :first become the 

agent of a member to sell his vote and then come here and testify to 

it with a great deal of gusto, as if there was nothing wrong in it; 

and that is the kind of testimony. I thank the Senator from Mississippi for illustrating it. This book is full of i_t. 

Mr. ALCORN. The Senator will allow ille a word. I agree that the 

book is quite full of it, showing the character of the lobby of the legislature of Kansas. He cannot expect me to go to secluded virtue to 

find testimony sufficient to delineate vice. I can only get those who 

mingle in the vice and bring them here and show them to the Senate 

that they may judge of their character. 1 

Mr. STEWART. I suppose that Chester Thomas is the only man that hates vice, but does Chester Thomas connect Mr. CALDWELL with 

it f If we can only go to those who mingle in the cess-pools, and they are not able to swear that CALDWELL had anything to do with it, if 

that is all you can bring here, all of it--

Mr. MORTON. Has the Senator read the volume f 

Mr. STEW ART. Every word of it. 

Mr. MORTON. Then the Senator knows that Mr. CALDWELL was connected with it from beginning to eud. 

Mr. STEW ART. I do not know from that volume that he is 

connected with any ease of bribery. I do not believe from that 

volume that he is. I believe from that volume that be went into 

politics an honest business man, that he was ambitions, that he was surrounded by Clarke, and by Carney, and by Spriggs, and by 

Anthony, &c., aud that they robbed him of his money. 

Mr. FERRY, of Connecticut. Will the Senator allow me to read a few words from Mr. CALDWELLY 

Mr. STEWART. Yes, sir. Mr. FERRY, of Connecticut. It is on page 55, in the testimony of 

Spriggs. Mr. Spriggs is testifying to a conversation between himself and Mr. CALDWELL: 

Question. Was anything said in that conversation about the use of money or necessity of paying money for votes 9 

Answer. I willjnst tell you what Mr. CALDWELL &aid to me about it. He asked me if I knew any members of the legislature that could be influenced by the uso of money for their votes, and I told rum that I knew two members, I believed, that 

bad tbA reputation of having been in.finenced in their votes on forq~er occasions .. Question. What did Mr. CALDWELL say in reply to that 7 Answer. He said if I found any memoers that wanted a little money for votes, to send them to him and to Len. Smith. 

Question. Was that all that was said upon the subjerti 

Answer. Mr. CALDWELL said there wa-s another class of high.toned gentlemen 

there in the legislature that would not sell their volies, but they put it in this way : that they had been to a pretty heavy expense in carrying their election, 

and they would want their expenses paid, and, if I met with any of that class, to send them to him or to Len. 

Does not that testimony make Len. T. Smith the agent also of Mr. 

CALDWELL, and all that he said and did proper and legitimate evidence 

against Mr. CALDWELL¥ 

Mr. STEWART. I thank the Senator from Connecticut for that 

suggestion, and will illustrate it by calling on one of the members of 

the committee who knows that Mr. CALDWELL was at home sick at 
150 CONGRESSIONAL RECORD. MARCH 21, 

the very time that conversation was reported to have taken place, as proved by tho testimony of two witnesses. Mr. CARPENTER. Two witnesses, whose testimony is found in the 

record, testify that on the day fixed with such particularity by this 

witness as the day when he conversed with Mr. CALDWELL, (for be 

fixed it by reference to the day of the election, knowing it was exactly one week before the election,) Mr. CALDWELL was sick at Lea. ven worth, 

and one of these men was his physician. 

Mr. MORTON. Mr. President, this is an attempt to break the force 

of a positive statement by trying to prove by som~body else that the 

witness must have been mistaken in the particular day when the 

conversation occurred, it havin~ occurred pretty nearly two years 

before the witness gave his testrmony. That is a fair illustration of 

the technicalities and the quibbles that are resorted to to break down 

this testimony. 

Mr. STEWART. I do not care about technicalities. I take the mass of this testimony as it stands. I take Spriggs as a specimen. 

Spriggs swears that he was a friend of Carney ; went there as such 

at the request of Carney, and, when Carney directed llim, be went in 

with Carney to carry out this transaction. If there was anything 

wrong, he was part and parcel ofit. If there was any corruption, he was part of it. It is very easy to swear to declarations. I tell yon the 

impression on my mind is that there were a party of men who had come to the conclusion that they would defeat CALDWELL unless they 

could black-mail him. · 

Mr. CARPENTER. Will my friend allow me to suggest another 

pointf 

Mr. STEW ART. Certainly". 

Mr. CARPENTER. It also appears iu evidence that this same wit- ness was examined before the investigating committee at Top ka, 

and questions wero put to him which called for this conversati·on with CALDWELL, if he knew of nny such conversation, and he omitted to state any such thing; and that was jnst six months after the 

conversation must have taken place, and at that time he did not rec- ollect it, but eighteen months after his recollection is perfectly distinct-so distinct that ho can fix the day; and when the day is fixed, 

two men swear that 1\lr. CALDWELL was away at Leavenworth, sick 

in his bed. 

:Mr. STEW ART. Is that a technicality T I tell you, these fast wit- nesses will arrange their stories every time. A man who will, at the 

dictation of another, enter the lobby and do what he swears he knows 

is criminal, will mend his oat.h and swear again. There are other .parties who ha.ve had several swears in this record. Mr. Clarke comes every time there is a necessity, and he appears and re-appears. If 

CALDWELL is convicted on this record, it will ue a disgrace to a.ll judicial inquiry; it will be a denial of a subst.antial right guaranteed to 

overy citizen of this Republic, to have a fair trial before his accusers on legal testimony. 

I have not come to this conclusion hurriedly. I have read this 

testimony twice, every word of it. I have looked ove1· these wit- nesses and their motives as carefully as I could. They may have 

given money to legislators, some of this crew, for the purpose of taking the curse off; but my opinion is that CALDWELL was sinned 

against by Carney, Clarke, and otlwrs, and that they bad all this talk 

at Carney's headquarters; they ~alked freely of the use of money 

when they were putting it in their pockets, and th\1t brings me to the 

$7,000, which I had almost forgotten, and which was meQ.tioned so graphically by the Senator from Pennsylvania. 

A day or two before the election, wllen the excitement was running 

high, a witness, whose name is Com!:!tock, I think, swears that Carney 

became dissatisfied with his $15,0GO and wanted then to become a candidate, and there was a little flutter in the camp. Carney had 

got inside and had all the secrets, and he consnlted with his frionds 

to know if it was time for him to come in and carry off the prize. 

Just at that very unfortunate time Len. Smith drew, in favor of 

Thomas Carney, a check for $7,000. The check appears here in this 

book with Carney's indorsement on it. T. J. Anderson had it oasbed. 

Anderson swears that he gave that money to Carney. Len. Smith swears that it was for Carney. The check was drawn in favor of 

Carney. What does Carney say 'I That it was used to buy members 

of the legislature. That was his idea. He says that the money was brought and pnt in his back room, and then he said, subsequently, 

that it was stolen. 

Mr. MORTON. How does Len. T. Smith explain that he came to 

give that $7,000 check to Carney T 

Mr. STEW ART. Because Carney was going to become a candidate. 

Mr. MORTON. That he would not stand by his agreement' 

Mr. STEWART. That was it. 

Mr . .MORTON. To show that my friend does not understand this 

testimony at all, according to his own statement, allow me to refer 

him now to the narrative given by Len. T. Smith, .Mr. CALDWELL's 

friend. 

Mr. STEW ART. What does he say about it 7 Can you not state 

that without reading 7 

Mr. MORTON. I can state it without reading it. Mr. Len. T. 

Smith swears unconditionally that when lie went there be offered to 

Mr. Carney the $7,000 to pay his expenses and as a condition that he 

would not become a candidate, and be swears two or three times over that that was all the money that lie knew about being used iu tbat 

election, and he presents that a.s the sole consideration and the sole 

payment to aud contract with Carney. After being examiue<l for 

two or three hours, just a-s he was about to go off the stand, be 

dropped a remark that was taken hold of by the committee; be was pressed to explain the remark, and then he came out and rena.led 

the fact that before that time there was a $15,000 cont.ract, which 

faleifi.ed his testimony; there is where the perjury comes in. 

Mr. CARPENTER. Will my friend from Indiana allow me to interrupt him a moment 'f The precise question now being discussed 

by the Senator from Nevada is whether this $7,000 was 1)aid to Carney or not. The Senator from Indiana, instea<l of statincr what Len. 

Smith says upon that point, proposes to show that Len. 'Smit.h swore falsely on some other point. 

Mr. MORTON. If I was willing to take np the time of the Senator from Nevada I could show that my friend from Wisconsin has 

not helped him out a bit, but has only got him in. 

1\Ir. CARPENTER. Yon have not helped him in. 

Mr. STEW ART. Not a bit. If the Senator has shown an inconsist.ency in the statements of Len. Smith, it is nothing more than I 

expected. I do not believe anything these fellows say about that 

money ; I li~ve they got it among themselves. The fact is, that 

Len. T. Smith drew his check in favor of Carney; there is no doubt 

about that; and when he is pinned down, although he may have 

squirmed around a little to keep character with Carney, he says Carney got the money. Carney indorsed the check in the regular coru·se of business. 

Mr. CARPENTER. The regular course of that business. 

Mr. STEW ART. It was drawn in his favor, and he wonld naturally 

have to indorse it. Len. Smith says be got it. Does anybody beliovo 

that that gang of thieves gave up one cent of that $7,000'f 

I was showing that Carney was not to be believeu. My friend from 

Indiana comes up and shows that Smith is not to be believed, and I suppose he would argo~ that Anderson was not to be believed. Tho fact 

is, Smith drew the check anu gave it to Anderson, and then he closeu t.he book, and when the check came back it would make no differen(je 

what was done with the money; it would be a plausible claim against 

CALDWELL. Does anybody believe that was not a black-mailing p~rforruance among those fellows 'f If yon discredit them all, how can you credit Carney 7 This explanation is worse than anything else. 

He seems to intimate that the Doniphan County delegation got it, 

but his explanation makes him a briber of the worst kind. He says 

tbat he indorsed that check drawn to him for the purpose of buying the Doniphan delegation. That is the effect of his testimony. 

He would rather have it that be bribed men; he, a man who had been 

governor of the State, would rather stand charged as the bri ller, the man through whom the money was drawn to bribe a delegation; be 

would rather swear to that infamy than admit that the $7,000 was receiv,.Pd by himself. · Mr. MORTON. Suppose the Senator is correct in his statement; 

what is tho effect ofit'f 

Mr. STEW ART. That it was.one of the most thoro~ghly scientific 

black-mailing operations I ever heard of, and that t!Jey returned it to 

CALDWELL as a check for expenses to bleed him further. 

Mr. MORTON. Will the Senator allow me a word right there T 

Mr. STEWART. Certainly. 

Mr. MORTON. If the Senator is correct in his statement, the bribe 

paid to Carney was $22,000 instead of $15,000. If Carney is correct 

in his statement, and Anderson is correct in his repeated confessions 

about it, Carney only got $15,000, and the other · 7,000 went to the 

Doniphan County delegation. So far from black-mailing CALDWELL, 

they sent for Carney repeatedly, and brought him by repeated invito,. 

tious to Topeka. They opened the negotiations every time and they 

brought the whole thing about, and there is Len. T. Smith swearing 

to it llimself-your own witness. 

Mr. STEWART. That shows the position tbe Senator occupies. 

He says that Carney, so far from black-mailing anybody, was sent for 

to come to Topeka. Does he find it necessary to compel Carney to 

convict CALDWF.LL Y Carney not black-mail anybody I On the very 

threshold he demanded $15,000 as black-mail, and got it. He stamped 

himself as a black-mailer at once. Tell me that when a man bas taken 

$15,000 of black-mail, and then proposes to break the engagement, and a check for $7,000 is offered, he will not take it! That is too absurd. 

Of course Carney got every dollar he could, and the committee themselves say that Clarke, because he did not get the same, brought this 

prosecution before tbe Senate. 

Mr. ALCORN. Will the Senator allow meT 

1\Ir. ~TEW ART. Certainly. 

:Mr. ALCORN. We are in search of light, and I know the good 

nature of the honorable Senator is inexhaustible. 

Mr. STEW ART. I am giving tlle gospel ou this question. [Laughter.] 

Mr. ALCORN. I desire that, and therefore I may be pardoned for 

presuming to reau from page 4 of the report: 

It is further shown that throe or four days before tho election took place lt:r. CALDWELL's agent went into the banking.house of Scott & Co., at Lea.vonworth, and drew the sum of $10,000 upon Mr. CALDwELL'S check, for the a.vowe<l purpose of taking the money to Topeka b y the train that morning, which waa given as the r eason for presenting the check before bank-hours. Mr. Jacob Smitli, banker n.t Topeka, testified that at nine o'clock in the evening before ilia election took place1\Ir. STEW ART. I have read that report. ·wha.t do you want to 

say abont that Y 

Mr. ALCORN. Presuming on my fri end's patience, I will read a little further; I trust he will hear me out: 
1873. CONGRESSIONAL RECORD. 151 

Dr. Morris, of Leavenworth. a very activo friend of Mr. CALDWELL, drew $5,000 

from his bank, and that Judl!e Crozier, of Leavenworth, an influential supporter of Mr. CALDWELL, and then at Topeka, laborin,!! for bill election, drew 1,200 from tbo bank after banking·hours, at the request of Mr.Smitb, which was banded over to Mr. Smith. 

Mr. STEWART. What inference do von draw from tbatf 

Mr. ALCORN. I submit, with the Senator's permission, that bavi ng shown that these large sums of money were drawn just preceding 

tlw election of Mr. CALDWELL, at the time all tbjs bribery is charged, 

having traced the moneyeiu the direction of Topeka, Mr. CALDWELL 

being the only man living who could tell the committee precisely 

what became of that money, where it went to, and for what purpose 

it was appropriated, he contents himself with closing his mouth and 

refusing to be interrogated by the committee on that subject, he being, I say, the only man who could ha.ve explained it, and he refuses 

to explain it, except by the general declaration that it was used in 

his private business. When I have pursued and found stolen goods 

in the possession of the holder, and he is called upon to explain the manner in which those goods got into his possession, if he fails to ex- plain it, he is chargeable with the crime. 

:Mr. STEW ART. Now I am glad that interruption is made. That 

shows the character of the Senator's mind, and how he is disposed to 

deal with this case. Iu the first place, this was CALDWELL's own money ; so the parallel of stolen goods does not hold. 

Mr. ALCORN. I do not pretend to impute anything of that sort. 

Mr. STEWART. If the Senator from Mississippi is found with 

$10,000, and he does not tell me what he does with it, have I a right 

to think he bas bribed somebouy or committed some crime t · Mr. ALCORN. Will the Senator allow me to replyt 

Mr. STEWART. No, I will not allow him to reply now. :Mr. ALCORN. I will only say that my friend's instance is not in 

point. 

Mr. STEWART. That shows the character of the Senator's mind. 

I think if anything is unfair it is the attempt to show that $10,000 was drawn 

Mr. ALCORN. It shows my friend's patience is not inexhaustible. 

Mr. STEWART. It is strange that anybody should tblnk it of 

sufficient importance to patch up this case and show that CALDWELL had drawn $10,000 of his own money; but I was right in the 

point of showing where this money went to; and I wa-s right in the 

point of showing that these harpies were robbing him right and left. 

Clarke swears that his ordinary expenses there were about $15,000. 

Carney's expenses must have been a great deal more than that. He 

complains that he gave on a former occasion, one witness swears, 

$25.,000 to Len. Smith. He is" *oing for" CALDWELL, and to drive him 

out of the place, because Len. r. Smith, who, it is said, is a friend of 

CALDWELL, got $25,000 of him on a former occasion to buy the l~rrislature, and uid not boy the legislature. I was going on to say that 

they had use for more than $10,000, and every one of them invited 

all his friends. They had four hundred, five hundred, six hundred, or a thousand men at Topeka; board was high, a rich man running, 

and every one of them came in for his share. 

Mr. MORTON. Yon are mah.'i..ng it worse than the evidence. 

Mr. STEWART. They went to rob him right and left; that is 

what it was; and then because these men cried for more, more, more money, more money all the time, and he fails to respond, the com- mittee report that his failure to respond to these harpies brought 

about this investigation. These men, influenced by such motives, 

brought on the investigation to get money. If men would do that, 

would t.hey not fix up a case; could they not take this same lobby 

that was eager to be bribed, that was eager for black-mail, could they 

not bring them here for more blood-money f CALDWELL had no idea 

of the character of Carney when be started. It is incomprehensible 

that a man who bad been governor of the State should be willing to 

do what Carney did. 

Mr. MORTON. Will the Senator allow me to make a suggestion in 

regard to that evidence f 

Mr. STEW ART. Yes, but do not occupy too much time, for I want 

to make this speech myself. 

Mr. MORTON. I want to suggest to the Senator in that connec- tion,. talking about that one $10,000 item, that the evidence shows 

that Mr. CALDWELL's agent,Mr.:Uartin,drew $10,000 out of the bank at 

Leavenworth, at nine o'clock in the morning, before the bank opened, 

for the avowed purpose of taking it to Topeka, to Mr. CALDWELL, by 

tbe morning train, and that was two days before the election; that was on Monday, and the final election took place on Wednesday. Mr. 

CALDWELL had it in his power to explain that that money was used 

for private business, but did not do it. On the night before the election, one of his agents and workers, at nine o'clock at night, a gentle- man who lives in Leavenworth, drew $5,000 out of the bank. Mr. 

CALDWELL might have explained that Dr. Morris did not get the 

$5,000 for him; bot all the evidence shows that he did get it for him, 

and that the banker knew it. On the same night Judge Crozier 

drew $1,200 out of the bank after banking-hours, and handed it over to Len. Smith, and during the day, in the day-time, the Kansas 

Pacific Railroad Company paid to Len. Smith, according to his own Htatement, $10,000~ making nearly $30,000 received on that day. 

Mr. LOGAN. If the S6nator from Nevada will allow me right 

there, 1 should like to interpose one word iu reference to this testimony. I am sorry to hear this statement repeated; but there is not one solitary ueclaration in all these four honureu pages that shows 

that Dr. Morris iliew $5,000 for anybouy else except; himself. He was 

the president of the bank. And further, I say as to Mr. Len. Smith, 

who, the Senator alleges, got $10,000 from a railroad company, and 

alleges it ou the declaration of Mr. Carney-lli. Len. Smit.h swears positively tha.t it is not true. Further, in reference to this agent the 

Senator speaks of, Mr. Martin, does the testimony show that he was the agent of Mr. CALDWELL l This bank clerk stated that he wa-s in reference to the management in his railroad, or some business matt.er; bnt you have no statement in this testimony anywhere, except 

the statement of that clerk that he understood that Mr. Martin wa-s drawmg this money to go to Topeka. Nowhere have you a declaration showing that the money went to 1\Ir. CALDWELL, or that one solitary dollar of it was ever used, directly or inilirectly, in this election. 

Not a solitary statement have yon to show that. These are the facts 

that are disclosed. The Senator infers other things himself that the 

evidence does not show. . Mr. MORTON. One word, if the Senator from Nevada will allow me. I want to say to my friend from Illinois that I think it is impossible for any man to read that evidence and bear out his statements. They are entirely too sweeping. l\Iy friend is mistaken. The 

evidence shows, and leaves no sort of doubt. unexplained, (and it was in Mr. CALDWELL's power to expla.in it,) that that $10,000 was sent 

there two days before the election for that purpose; there is no explanation that he wanted money there for any other purpose; he did not 

live there. The evidence shows that Dr. Morris went up from Leavenworth to electioneer for him-he was one of his friends there-and 

that he drew $5,000 out of the bank late at night, and that the bank- ers understood what it wa-s for. The $1,200 was drawn by Judge Crozier and handed over to Len. T. Smith, and Len. T. Smith himself was a millionaire, and his check always good; but he wanted Judge 

Crozier to draw the money for him in his name, and he did, and he 

handed it over to Len. T. Smith, and, according to Crozier's own statement, Len. T. Smith afterward paid the check. The whole thing wa-s conceded; it was done at night, under circumstances that clearly 

proved it was not fair. And now as to the $10,000 of the Kansas Pacific Railroad Company. 1\Ir. Anderson drew the money. He says he 

did not know what it was for; but there is the positive statement 

of Len. T. Smith and of Carney that he got the money. 1\fr. Andersl>n 

gave a false reason for cashing the check at the bank there. He said 

there was no money in the trea-sury of the Kansas Pacific Railroad a corporation having eight hundred miles of railroad. He afterward 

explained it in another way, by saying that the treasury of the com- pany was down in Saint Louis, too far off. There is the positive statement of Oarney as to what Len. Smith told him; and then come the statem~nts of Clarke, and of Anthony, and of Carney, in regard to 

what Mr. CALDWELL said about the payment of money on the part of 

the company. Now, take it all together, put this evidence together, 

and it seems to rue it is impossible for anybody to doubt that the 

money was paid to Leu. •.r. Smith on that day, making nearly 30,000 

there that wa-s unexplained. 

Mr. CALDWELL h3d it in his power to explain every bit of it, if 

there was any explanation to it. Mr. CALDWELL made a general denial of the use of money, but he would not swear to it. Why, the 

Senator himself, if he ha~ occasion to go before a committee to exon- erate himself, I know would ask to be pot under oath, and be would 

not ask the committee to take his statements upon his honor. We 

have seen that in the case of members of Congress and Senators re- cently, who were anxious to be put under the obligations of an oath, 

morally and legally, and did not seek to exonerate themselves by 

making statements upon their honor. It was in 1\fr. UALDWELL's 

power to have explained all these things; but here is this converging 

testimony showing nearly $30,000 paid him there on that day; and, 

taken in connection with the rest of the testimony, it leaves no doubt 

that it was for the purposes of that elect.ion. 

Mr. STEWART. Now, I will yield to the Senator from illinois, but 

I will not yield to the Senator from Indiana again till I have had a word to say. 

Mr. LOGAN. Now, I desire to repeat what I said awhile ago to the 

Senator from Indiana, that there is no reason why either he or I 

should give any color t.o this testimony that the testimony does not 

give to itself. I said to him that he might infer what he bad a mind 

to about the use of money, bot that the testimony itself did not say 

so, and that is what I am talking about. Let me see whether I am borne out or not, for I am sore I know this testimony as well as any man in this Senate ; I did not read it merely with a pencil iu my hand 

to misstate it, .bot I read it to understand it and state it as it is. In-· 

ference I will not give; but if the Senator wants to draw inference 

from the testimony he is perfectly welcome to do it, but I state the 

testimony as the testimony is. • The evidence in reference to the $7,000 is that it was paid to l\Ir. 

Carney the night before the election, a-s testified to by Mr. Anderson, on a check drawn by Mr. Len. T. Smith to Mr. Carney and indorsed 

by Mr. Carney. The Senator says it was used, and Mr. CALDWELL 

most have known it, for corrupt purposes. He intimates that. \Ve 

all, at least, ought to be willing to give every man what fairness of 

statement gives him when he is on trial for such an offense as this. 

Does not the Senator from Indiana know that the evidence shows 

that Mr. CALDWELL never knew the fact that that 7,000 bad been 

drawn until this committee disclosed the fact Y Is not that trne from 

this testimony f I say--

Mr. :MORTON. Docs the Senator ask me that question t 

Mr. LOGAN. I inerely say tbat. 
152 CONGRESSIONAL RECORD. MARCH 21, 

Mr. MORTON. If it is asked of me I will answer. Mr. LOGAN. The Senator can answer as often as he has a mind 

to. I am speaking of what the evidence is. What lle.may think or what others may think is not what I am talking about; I am talking about the testimony. He says that Mr. Len. Smith got the 10,000 

from the railroad. Let ns see whether be did or not. Mr. Carney swears that Len. Smith told him so. Is not that what the Senator 

bases his statement on f Mr. Leu. Smith swears that be told him no such thing. What does Mr. Anderson swear T Mr. Anderson is the man who drew the monev, and what does he swear f Mr. Anderson swears that the money was expended to pay the taxes of the railroad, and to give dinners and wines to get legislation for the railroad. 

Mr. MORTON. 0, no. Mr. LOGAN. We will see whether it is or not. 

Now, in reference to the ot.ber proposition, about the $10,000 drawn 

by Mr. Martin. You say that was drawn for corrupt purposes. - Why 

do you say so f You ask, w by does be not explain it f Mr. CALDWELL 

states in his explanation that it was used for business purposes in his 

ordinary business management. Do you want auy more explanation 

than that, or do you want to put him on a griddle and roast biro for 

two days, as a Senator here wa.s before a committee, to explain what 

he had done with all the money he had, from ten tbonsaml dollars to a dollar f If so, I ask the Senator if he can explain every dollar be 

bas used for all purposes within the last five years. God knows I 

could not. I can Ray, generally, that I bad used it in my business, 

for my business purposes in the general management of my business, 

bnt I conld not tell ~here it had all gone, and I could not, without a full examination, tell anything about it. 

You say it wa.a corrupt. ·why corrupt! As I said awhile ago, 

there is not the testimony of one solitary man showing where one single dollar of that money went, except the statement of Mr. CALDWELL that be used it in the management of his business affairs, not one scintilla of testimony, and yet you charge, because he drew twenty-five or thirty thousand dollars in that month, he mu t have used it 

for a corrupt purpose. That is yonr inference, drawn from what Y 

Dmwn from a certain state of facts which yon do not know whether 

they are true or not, from hearsay, from rumor, from vapor, from 

everything, where a man wishes to dn1w some inference by which he 

may punish some poor mortal, based upon no state of facts that are true and that have been sworn to. 

The facts are as I state them. Hence I say that the testimony 

brings you to no conclusion of that kind, except by an inference. If 

a man chooses to draw inferences, he has a right to do it, but the testimony does not warrant the statement. 

Mr. STEWART. Now I l:elieve I have the floor. When I struck on a tender point and created such a fluttering here a little while ago, 

I was alluding to a single transaction, that Len. Smith drew in favor 

of Carney a check for $7,000, and Thomas Carney tried to show it was used for bribin~ purposes, and Smith says he got it. I have before me Len. Smiths explanation of it, which I might read. Here is 

Len. Smith's testimony: 

By the CHAIRMA~: 

Question. What reason did Mr. Carney/ive for demanding that monfly f 

Answer. As I said before , that be ha been to a good deal of expense-bad r ented rooms, and would like to have his expenses paid. He pretended that it had cost him a great de<ll more than this would make him whole. 

Qnestion. More than $7,0001 Answer. Yes, sir. 

Question. What was the consideration of that check to Governor Carney I 

Answer. For claims for his expenses. Question. Were you willing to pay it to him f 

Answer. I cannot say that I was; but I was, under the circumstances, for we were in such a place I could not afford to differ with him, as there was a great. deal 

of miRtrust all the while that he was. coming out as a candidate, and we were anxious to secure a Leavenworth man, and coilld not afford to differ with him at that time. 

That is his expla.nation. That is what Len. Smith swears to, 

whether Len. Smith is credible or not. I made the statement that 

the check for this $7,000 was drawn by Len. Smith in favor of Carney. 

'l'he record bears me out in that. I said further that Len. Smith said 

it was given because he was likely to be a candidate. Comstock and one or two others swear to that fact. Anderson says he did not. 

I was interrupted as misstating the testimony. There is nothing I 

stated which is contradicted; but it is because Governor Carney gave 

another account, and it was improbable that the governor would tell a falsehood! Now, ther~ are witnesses who stand unimpeached who 

&ay that he declared in Leavenworth that he would come here and 

put CALDWEJ,L out of his sen.t, for the reason that be was himself on the eve of being elected to the Senate at the time Ross was elected, 

and that it required the buying of a few votes, and they were in the 

market; and he gave Leu. Srt:lith $25,000 to buy them, and Len. Smith 

had sunk the money, and therefore he wanted to swindle Len. Smith's 

friend, CALDWELL, ont of his money. This man, who came here with 

that declaration, this man that already had in his pocket bloodmoney, black-mail, because he gives another account of this transaction, two witnesses are contradicted and must be disbelieved, and 

not only that., but the face of the check must be contradicted, and I 

must be called to order, and all the money that CALDWELL bas drawn, 

oT anybody bas drawn, it iH said CALDWELL is to account for. He 

must not only account for money that he drew, but for money that 

Dr. Morris drew, money tbat the railroad man drew, all the money 

that was used by anybody where the testimony fails to show any 

connection between him and that money. 

It is said that CALDWELL ought to have gone on the stand himself. 

It is not shown that be knew the money was drawn t.hat be is call ed 

upon to explain; and this is the institution, thi is the Senate that 

is going to vindicate its honor; this is the Senate that is going to ue on trial! Yes; I think the Senate is on trial. I think the honor of 

the Senate is on trial when it comes to the conclusion that it is its 

duty to convict a man because he bas not explained transaction 

with which• he had nothing to do, and prove a negative in a case where it would be necessarily impossible for anybody to do it. I 

thought this was to be a trial. I thought b~re a Senator was to be 

disgraced and marked with the brand of Cain upon his forehead 

through life it required affirmative proof. Talk about the Star Chamber of England! Talk about the Inquisition! Give me them and 

deliver me from a committee where conspirators, with their bloodmoney in their pockets, can come aud by hearsay testimony ruin a man that bas stood well, with honorable parentage, with a good 

character. I was touched by the remarks of the Senator from Pennsylvania when be told us of this man's father and the honorable 

character that he had borne and the services that he had rendered 

to his country. Of this youn~ man no one has spoken ill. Every 

Senator has been constrained smce he came upon this floor to speak 

well of him, and say that 1\Ir. CALDWELL has conducted himself as a Senator so as to offend none. Some have congratulated themselves 

that they would have a victim ; that they could not be accused of spite 

if they punished him, because they were not unkindly to him. I tell 

yon, Senators, there is evidence in this record that somebody is mad 

at him. There is evidence in this record that he has been robbed. 

Now, I regard that transaction with Carney as highl.v discreditaule; 

I believe there ought to be a law passed against such transactions ; 

but, from the circumstances under which it was done, the. committee 

itself was constrained to say that in that transaction he was more sinned against than sinning. The citizens of Leavenworth bad petitioned him to become a candidate for the Senate. That town was ambitions to be represented. Carney had hitherto been their aspirant. He tried to buy himself in, according to one story, but it failed. 

His name had become associated not pleasantly to the people of Kan- sas. They were anxious to have a candidate who would have some show to be elected, and they petitioned CALDWELL to become a can- didate. Carney was absent, but on his return he says, ''Fifteen thousand dollars or I will be a candidate, and you will have two candidates 

in Leavenworth, to defeat both. You shall not ue represented in the 

Senate unless you pay me for my former expenses." l<,ifteen tlwusand 

dollars, this was the amount named. I say the payment of that $15,000 

under those circumstances is no worse thn.n buying a newspaper to 

advocate your cause, no worse than spending money in an election. 

It would never put a man out of the way unless he was willing to take 

black-mail. It was an unfortunate thiti~; !Jut I say it was no worse than using money to pay for electioneermg purposes, and many men have used money for those purposes out of their abundance, and have 

been extolled in the newspapers for it. How many have been rewarded 

with office for pecuniary contributions f And it appears that in Kansas, particularly, the state of public morals is such that it is considered no ruan can come here unless he does. 

But there are several witnes es who say Clarke was trying to bribe 

them. Suppose Carney or Clarke had been elected, where would this 

record place them T They go on to speak of the large amount of 

money that they expended. Would the thing have been better if one of them had been elected Y No, Senators. 

Here is the case: when the committee fail to point out the evidence 

criminating CALDWELL, they feel called upon to say that he ought to 

have explained what was not proved. In a criminal proceeding, ou whom is the burden of proof! Has it come to this, that a Senator is 

to be put on the rack to explain himself before he is shown to be guilty 'f 

Is be to disprove things which are not proved' Is he called upon to 

prove affirmatively his innocence 'f Has the order of proof been re- versed f 

0, it is easy now to go after Mr. CALDWELL; it is easy to expel him; 

it is easy to make a great show of virtue, and we. are told that we must <lo something or we approve of fraud and · corruption. How 

would such an argument appeal to the British Parliament after they 

ha.d come to t4e conclusion tllat treating, or that bands of mnsic or dressing in parades, and all that kind of thing, was improper and 

should ·be stopped f What would be said of tho British Parliament 

if it bad taken up a man and expelled him for those things before 

there had been a law prohibiting them-when they bad been the cus- tom of the country for a long timet W onld you say that they were trying to do their duty Y Wonld you not have said that they were trying to make a show of cheap virtue, and that the British Parliament had fallen very much in your estimation f Bnt they went to 

work deliberately, and when the use of money in elections had become 

intolerable they passed a law against it; they provided rules which 

all parties observed. 

But here we are called upon by one Senator to go back of the Constitution. There is a constitution back of and abo .. Te the Constitution, be says, and we are called. upon to enact the law, convict a man, 

enter judgment, and carry it into execution, in one vote. Wben that 

practice prevails in the Senate of the United States, the liberties of 

the people will be at an end. It will not ~ done. The Senate of tb~ 

United. States will not do it. They will neither declare this election 

void. nor expel this man. They cannot decl are the election voill without violating the Constitution. They have no jurisdiction to say 
1873. CONGRESSIONAL RECORD. 153 

who shall vote in the Kansas legislature. No man has put his finger 

upon the authority for your doing it. You cannot do it. Do not do 

that until you can put your finger on the authority, if you are a judgP. 

If you mean to be a partisan, do what you will. If you are going to 

be a judge, find the law. Mr. CALDWELL has a right to demand the 

law. I demand the law under which you say you can decide who cau vote in the Kansas legislature. You cannot produce it. Every states- rna~, from the beginning of this Goveroment until now, that has 

spoken on the subject, has said you could not. You cannot review 

the action of the Kansas legislature on that subject. 

Then some say "It is immaterial; I will vote for that, and then I 

will vote for expulsion." You have the power to expel, but that 

power in all civilized countries is governed by some legal rule. Will 

you be satisfied with a record that you do not understand f Will 

you be satisfied with a record of hearsay, and will you be sat,isfied to 

predicate your action upon the malice, the recordecl malice of a lot of 

conspirators, each of whom acknowledges himself infamous f Will 

you be satisfied, I a.sk, to pronounce a man guilty upon the testimony 

of witnesses, each of whom condemns himself, wbeu this man has 

from his childhoqd a good reputation-when he has conducted himself without spot or blemish while he has been a Senator' Will 

you, I ask, be satisfied if, upon hearsay testimony, you ba.ve destroyed a man thus situated, and for such a reason; and then will you sa.y 

that that is American justice' Will you be satisfied that that is 

giving to every man the right of trial before his peers; the right of 

having the witnesses presented; having the facts understood 7 Will 

you say that that comports with English or American justice' Will 

you be satisfied with that 7 

Fellow-Senators, I do not want a recor<l of that kind. I do not want 

to record decrees against this man written in the malice of Carney 

and Clarke. I cannot rest my conscience upon that, it is very clear. 

I will take none of that responsi hili ty. I believe, if he has committed a crime, that the people of Kansas will convict him there by prosecution for the offense, or by his rejection at the next election, or by some manifestation of public sentiment. I believe it can be corrected there. 

I believe they will correct it. But if we commit a mistake, if we yield to the prejudices and passions of the hour, violate the Constitution, trample upon the rules of evidence, trample upon the laws that 

guard elections for the purpose of securing a victi ro, there is no re- tracing that step. Justice can never be done in that way; it never can be reviewed ; the evil never can be repaired ; but l do believe 

that the people of Kansas will do justice between these men, and I 

do believe that this discussion and this expose will have a great moral 

effect against the use of money. I do believe that Congress, so far as it can, at the next session, will pass laws against the use of money, 

and I believe Kansas will wake up. 

Mr. MORTON. What expose does the Senator refer to f 

Mr. STEW ART. The expose of this conspiracy; the expose of the manner in which a candidate has been robbed, and submitted to it, 

in one election in Kansas; that is what I referred to; and the further 

expose that the Senator talks of convicting a man because he is not 

put upon the rack, and has not accounted for all the money be has 

had. I think it will attract some attention in this country, that a man came· very near being convicted because he would not put himself upon the rack and swear against charges not established, and 

make a.t'ool of himself, reversing the whole laws of criminal jurisprudence. The fact that anybody in the Senate of the United States 

should get up and urge that a man charged with bribery is bound to 

prove that be wa.s not a briber before any man has proved that he 

was-! think that proposition, made in the Senate of the United 

States, will attract some attention among lawyers. I should like to 

send this testimony to lawyers, that they might see the mode of ex- amination; the facility with which spite can be vented; the ease with which men can be thrown, and the facility with which a man can be put out of the Senate, or declared not elected, notwithstanding there was a decision of the Senate that be wa.s elected. And that 

is called a trial by the Senate of the United States! 

This record will be a precious thing if CALDWELL is put out. It 

will be authority for what 7 It will be authority for calling a Senator up, and if he does not tell everything he has done in his life-time, it 

will be presumed he has done something wrong, for which yon are to 

turn him out of the Senate. It will be authority for letting men who 

say thoy have committed fraud and rascality prove hearsay, come in 

and detail their guilt. It will be authority far worst} than the Star 

Chamber, because if you are going to put the thumb-screws upon a man, if you are going to clothe job right up for him, why go to the 

expense of taking this testimony 7 Why not apply the rack direct' 

What is the use of getting a whole lot of peijury 7 In old times 

they did not spend any time on that; they went to him directly. 

What is the use of having Carney here, all reeking with corruption 

and vengeance Y What is the use of having Sidney Clarke here try.-

ing to. collect his $15:000 1 What is the use of having any of the rest 

of them here Y Why not takt\ CALDWELL out and put bim ri~bt through 

without any trial, at once, and ask him all sorts of questiOns~ You 

say you condemn him because he did not go on the stand himself and 

a11swer all sorts of questions. Then there is no use in beating about 

the bush. Take him up and sift him through. Take any Senator; 

go through his senatorial election; ask him bow much money he had, 

an<i. ~1bether he paid any money to anybody; go through with it; 

purge the whole l>ody; let us have an expose of the whole thing. You 

need not charge anybody with e.verything, but have a committee appointed; call him up; ask him, "Did you ever do anything wrong ; 

clid you not have some money; did not somebody pay you some money f" 

and some men come in and say they heard somebody say that so and so occurred. That is the way to deal with American Senators I Here 

is a man charged ancl attempted to be expelled because he did .not tell 

what Dr. Morris did with $5,000 of his own money, which he drew; 

did not tell what Crozier, a lawyer, did with $1,200 he drew of his own money. He must be a terrible man if he would not tell what 

tlwse men did with their money! 

Now see the uncertainty of this; look at this report. I abandon 

the question of declaring the election void, because that is too absurd. 

If any lawyer is willing to rest himself on that, I am satisfied; he 

may glory in that theory, and see where it lea-ds him. 

Now T come to the question of expulsion. The committee say that 

there wu.s something bad going on-bribery going on; but they do not 

find that Mr. CALDWELL committed bribery. They have not found that 

fact affirmatively. Here are half a dm:en Senators who have got up aml 

read the testimony, and said they woulcl vote for expulsion. Thereport of the committee does not find any fact connected \vith it. The 

report does not recommend him to be expelled, and it does not find 

that be has committed any act to be expellecl for, or that he has cotumitted bribery at all. And yet here are plenty of Senators ready to 

vote for his expulsion on account of bribery; and men who do not say 

that they have read the testimony, and men who do not discuss it as if they knew anything about it, get up and take it for granted that 

there has been an enormous offense committed, and therefore have no difficulty on th?t point, because there must be a law back of the Constitution to punish all such offenses. That is the kind of argument we hear. 

·I tell you, fellow-Senators, that this is a matter of law, and the 

American people will submit to the execution of the law. They wtll 

ben.r with these evils until they can correct them by law; they prefer that. Mexico makes a revolution whenever a thing goes wrong; 

fanatics ma.y do that ; but the American people bide their time, ancl 

they will correct the evil; they will apply the knife to these lliseases. 

They will indict bribery; they will raise their voice against it. If 

Congress will pass statutes against it the thing will be stopped; but 

it will not be stopped by violating the Constitution, by denyiug a man fair trial, by condemning him on hearsay testimony, or putti11g 

leading questions to witnesses, or upon the conspiracy of men who 

desire to black-mail; but let every man be tried according to law. It 

will be done here, I have no doubt; but I do say that if you are going 

to pass upon this testimony, it is your duty not only to read it but to 

know who these men are who testi±:y. It is qnite important enough 

to spend from now to December in examining this testimony. I, fur 

one, if this thing is going to be. pressed to a vote, would rather sit 

here and have each one of those witnesses brought upon the staud 

and testify in the presence of these Senators, if such au extraordinary thin~ is necessary. If it is necessary now that we should have an ex- ample, let us have the witnesses here. I want to see them. 

Here we are trying a man for crime on depositions. There has not 

been a time in three hundred years that that would not have produced a revolution in Great Britain. Try a man for bribery on depositions I No fact of bribery in the election is found; we have nothing but loose statements, and then look at the certainty of it! Here are three Senators on this floor who deny it; two who affirm it to be 

true. The other two Senators who were on the committee are not now here, and we cannot hear what they have to say about it. 

I hope that I have not said anything offensive to anybody in my 

remarks, and particularly to the witnesses who fignre in this report. 

I think they will not be o:ft'ended at me if they will read the report 

themselves and see themselyes in the light they are presented thero, 

since I have called their attention to the fact as plainly as I can do 

it. Telling such things does not appear very well, I know; but since 

I have called attention to the facts, I think if they will read it tbey 

will rather sicken of themselves. I think the Senate should not get 

into a special spasm over the fact that some of these gentlemen can- not collect more black-mail from CALDWELL. They have not collected all they want, and therefore this prosecution. 'l'he report is 

that the prosecution happened because more black-mail was not forthcoming. This seems to be a proceeding for the collection of the re- mainder of this bla~k-mail, and I think that if we do not commence by making a victim of a man who was "more sinned against than 

sinninCT," we bad better make an example by expulsion, to testify our indignation against the use of money in elections. The people 

would be just as well satisfied. They would as lief we should take an old rogue rather than a man who is green in politics and who was robbed, as an old politician would not be. 

This is the first case that ha-s been thought of. These otherf~ows 

were veterans in bribery in Kansas in other years. I think the people would be more glad that we should get hold of one of them rather 

than get hold of a man who was sinned against more than he sinned. 

I do not think they will feel especially outraged if we do not make a 

victim of this particular man, for I have great, ·confidence in the people. They at last do arrange things so as to make them come out about even. They will now start on this question; no doubt about that. 

This practice has got to be stopped. Men who have not money have 

got to have as good a chance as those who have, and men need not 

expect hereafter to make anything in elections by the use of money. The practice is going to be stopped, but it will not be done by makiug a victim of the man who has done the least. 
154 CONGRESSIONAL RECORD. MARCH 22, 

Suppose Mr. CALDWELL were to be tried in Kansas on this testimony. I venture to say that you could not get one man out of any 

twelve jurymen in Kansas, of either party, to convict him. I caught 

the key-note of this proceeding in the testimony of a democrat who 

testified before this cummittee. His name is Fenlon. He was a mem- ber of the legislature of Kansas which elected Mr. CALDWELL, and he 

is the bright particular star in this proceeding. He throws a great 

deal oflight on the way things were done there. He did not have 

anything to do with the use of money himself, but he throws agreat 

deal of light on the politics of Kansas. He does not; appear to think 

that CALDWELL was a very bad man, but rather a pretty good fellow; and the committee admit that Mr. Fenlon was a very good 

man, and he appears excellently in the testimony . . So I will take a democrat, I will take 11fr. Fenlon as a sample, and I am willing to 

take a jur.v of all democrats, and let them ha.ve before them all these 

witnesses in Kansas on a prosecution for bribery, and then if Mr. 

CALDWELL be convicted of any offense, I will vote for his expulsion. 

I will be satisfied with that verdict. I will be sa.tisfied with the 

rnle of evidence administered by a conrt under such circumstances, 

and will acknowledge that justice has been done. But I do not believe this report throws any light on the subject. 

I know we are told that Senn,tors go before these committees voluntarily, but how do they come outf After they have been cross- examined what becomes of them; what kind of trin,l do they have f 

Here I n,m reminded of the fate of a Senator who recently sa.t with us. Injustice! cannot help referring to him-a. gentleman who went before an investigating committee of the Senate at t.be last session. I do not 

pretend to say anything about the report of that committee; but here was a man who had bome a good name all his life, who never had 

handled money, who never had anything said a.gainst him, but he wa8 

accused of dealing in Credit Mobilier stock, and hG went before a com- mittee of the Senate, and was so overcome by the situation that he 

could not tell a story which would correspond with that told by others. 

The committee sympathized with him, were sorry for him, but he was so perfectly overcome at being charged with an offense that be did not 

know what to do. I have read through and through the testimony 

taken by the committee in the case to which I refer, and it showR tha.t 

that man could not make any statement at aU. He had no rights 

there. That was not a fair triaL Yon have never given him any 

hearing, and yet ~hat committee proposed to expel him. 

Mr. MORRILL, of Maine. I cannot let \vhat my friend has just said ~taod without some notice. · Mr. STEW ART. I am not reflecting on the committee. 

Mr. MORRILL, of Maine. What caae does the Senator refer to f 

Mr. STEWART. The case of Stmator Patterson, of New Hampshire. I say he went before the committee, and was so overcome by 

the situation that be could not tell two stories alike. 

Mr. MORRILL, of Maine. Why is it necessary for the Senator to 

apologize for more than one caee at the same time f 

Mr. STEW A.RT. I am not apologizing for it at all, but the Senator 

from Indiana recommends that CALDWELL should be put upon the 

rack in this particular case, and that is the way to do it. Now, I 

think Mr. Patterson was a very great fool for making any statement 

at all about that transaction. There is a principle involved in this. 

Men have confessed murders that they never committed. Men have 

been executed for murders they never committed, on their own con- fession. Why, sir, a case occurred not very many years ago where two 

persons were convicted of the murder of a man on their own confessions who finally turned np alive. Now, courts refuse to convict for a murder on a confession, until the homicide is proved. Most men, 

particnlady one that has not been accustomed to such a iituation, 

when put on the stand, accused of crime, and questions are put to 

them, are not competent to speak in their own behalf. The law so declares, and there is no place where the common law is administered 

where such a practice would be tolerated. There is no place where 

the common law is administered where yon can put a man upon the 

stn.nd and take advantage of the tryinO' circumstances under which 

he is placed to extort a confession. Confessions voluntarily made . by men under such circumstances have turned out to be untrue, until 

there is but little faith put in them. 

I say, therefore, there is no force in the suggestion that CALDWELL 

should have been put on the stand, and should have been pnt to the 

ordeal of accounting for all the sums of money that he and everybody else drew, and then, of course, if he bad failed to account for 

the money that Crozier drew, or that Dr. Morris drew, or that anybody else drew, he would be held guilty, and that would be conclusive evidence of his guilt. That would be a good deal like the rules 

of evidence that were adopted in ancient times with the witches. 

They were put in the river, and if they swam-Jhey were guilty and 

had ·to be banged, but if they sank and were drowned they were innocent. So you would put CALDWELL on the stand, interrogate him, 

and make him account for all the money that he may have used 

about a certain time, and he would have the same chance that a witch would have under the old practice. 

If you seek to raise the presumption against this man because he was not sworn, let me remind yon tha.t yon have had Senators here 

who have rebelled against being sworn when they were called upon as 

witnesses; and it is very questionable whether it is the proper proceeding to swear a Senator. That bas been demurred to by old Senators 

in this body, some of them within the last year. Hut, sir, at any mte I 

say that no inference unfavorable can be drawn to :Mr. CALDWELL IJecause his statement in answer to these charges i made on the honor 

of a Senator; it traverses overy allegation; n.nd hi c!Jaracttr u;;,-

fore was good and bas since been good, while his· accusers are as a body engaged in extracting money from hip-~, ancl tlllly admit tlw,t 

to be tlleir object. No charge of bribery is proved against. him, nor ls it proved that he was connected with any specific case of bribery. 

There may have been general bribery ont of doors there, bnt. it was not brought home to him. 

Mr. President, I shall not longer detain the Senate. I am obliged 

to the body for the attention which it has given to my remarks. 

1\Ir. FERRY, of Connecticut. I have soruethiug to say on this subject, Mr. President, but I do not desire to go on to-night. 

Mr. SHERMAN. If the Senator from Conn ct.icnt will yield, I 

desire to move an executive session. 

Mr. CARPENTER. Will not the Senator let us move an adjourumentovertoMondayfirstf ["No!" "No!"] 

Mr. SHERMAN. Let us go into executive session. There i somo business we ought to do in executive session. I move that the Senate proceed to the consideration of executive business. 

The motion was agreed to; and the Senate proceeded to the consideration of executive bUI'>iness. 

After forty-five minutes spent in executive session tho doors were re-opened; and (a.t five o'clock and five minutes p.m.) the Senate 

adjourned. 

IN THE SENATE. 

SATURDAY, Mm·clt 22, 1873. 

The Senate met at half past ten o'clock a. m. Prayer by Rev. J. P. NEWlUN, D. D. 

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

WITHDRAWAL 0.1!' PAPERS. 

On motion of Mr. DORSEY, it was 

fr~~h!~;!-' h~l ~eBs~::.an have leave to withdraw his petition and papers 

ELECTION OF SENATOR CALDWELL. 

The VICE-PRESIDENT. Resolutions are now in order. If there 

be none, the ~enate will resume the consideration of the unfinished 

business of yet~terday. 

The Senate resumed the consideration of the following resolution, 

submitted by Mr. MoRTON on the 6th instant: 

Resolved, That ALEXANDER CALDWELl, was not duly anrlleJ?.ally elected to a seat in the Senate of the United States by the legislature of the State of Kansas. 

The pending question wa-s on the amendment of 1\fr. FEHRY, of 

Connecticut, which was to strike out all of the resolut.ion after the name "ALEXANDER C.ALDWEJ.L," and insert "be, and be hereby is, 

expelled from the Senate of the United States;" so that, if amended, 

the resolution would read: 

s!~f!v~f·tl:T?nft~~~e~~ CALDWELL be, and he hereby is, expelled from tho 

Mr. FERRY, of Connecticut. I should not be willing to proceed 

unless there should b~ a qnorum of the Senat-e present, and therefore I will yield the floor to any Senator who desires to speak-in the 

present condition of the Senate. 

Mr. FERRY, of Michigan. Mr. President, I should not now thus 

interrupt the course of this instructive debate but for the amendment 

offered by the Senator from Connecticut. I regret that he bns submitted his amendment of expulsion at this particular time in the 

determination of the whole ca-se. While I have not occupied the at4 

tention of the Senate during this discussion, I have, so far as I could, 

given close attention to the ten days' debate which has been so ably 

conducted, and which has shed so much light upon the novel question, now for the first time formally raised in the American Senate, 

whether bribery vitiates the election of a member of this body. H 

I have fairly apprehended the scope of this debate, it has aimed 

at and confined itself substantially to the question of the legality of 

the act of the legislature of Kansas by which .A.LEXAKDER CALDWELL 

holds a seat in the Senate of the United States. I am borne out in 

this by the scrupulousness with which Senat<~rs participa.trug in the 

discussion have so far avoided the question of expulsion in the submission of their views. It has also been disclosed in debate that the 

majority of the commiitee who reported the resolution were in doubt as to the proper method of disposing of this case. They chose the 

question of the validity of the election as the primary, if not proper 

one, upon which they would invite tlie· judgment of the Senate. To 

ma.ke sure of the one or the other, a member of the committee, the 

Senator from Mississippi, submitted a resolntion of expulsion, which 

at his instance was to serve as notice and be laid upon the table to 

await the determination of the Senate upon the first resolution, 

when that next should be considered. This appearing to be the loiYical order of consideration in committee, it would seem more in acco"i-d 

with their wishes and the logical sequence that tho Senate should 

pursue the same order in its consideration and determination. It 

would hardly ue just to the committee to treat it in any other order. 

The amendment of the Senator from Connecticut rovet·ses t:hh;, and 

compels the Senate to record its jnrlgment upon the q n ~:~tion of ;--.;-

pulsion before it can arljndge wbether Mr. CALDWELL is Ly elective 

right entitleU. to the seat he occupies.