164 CONGRESSIONAL RECORD. MARCH 24, 

credentials and ratified by allowing him to be sworn in is overthrown 

by the judgment of the Senate, he stands here a Senator. 

Mr. CONKLING. Because he was elected. 

Mr. THURMAN. No matter whether he was rightfully elected or wrongfully elected, he is here a Senator. By: what ri~ht is it, when 

the yeas and nays are called, the name of CALDWELL 1s called f By 

what right is it that he votes f By what right is it that he speaks f 

By what right is it that he exercises all the powers and duties, and 

enjoys all the privileges of a Senator f Because there are his credentials on your table, and he has been sworn in, and it never has been decided by the Senate that he was not elected; and therefore, when 

the question shall come up about expelling him, so long aa his election has not been declared void, so long is he to be considered a mem- ber of the Senate, and he may therefore just as well be expelled as any other member of the Senate. There cannot be any doubt :;~.bout 

that, as it seems to me. If it were not that everything can be doubted; if it were not that 

Bishop Berkeley proved, so that nobody has ever satisfactorily an- swered him yet, that there is no such thing a-s matter, although Byron 

said it wa-s no matter what he said-although that has been proved so that people have been puzzled ever since to know whether they ex- isted, so that the old beginning of reasoning on metaphysical subjects, 

the maxim, the postulate "ego sum" itself, is denied by metaphysicians, yet it does eeem to me that, notwithstanding this world of doubt, 

incredulity, and uncertainty, there is no doubt that the Senator from 

New York is wrong in his proposition. 

Mr. President, in respect to this matter I do not feel disposed to 

take any leading part in indicating what shall be done. I am willing 

to vote on these questions just ae the majority of the Senate see fit to 

bring them up. My own personal preference is to take a square vote on the resolution of the committee. If a majority of the Senate see fit to do otherwise, I bow to the majority. 

I do firmly believe that this election of Mr. CALDWELL was procured 

by bribery; I believe that it was controlled by bribery. I cannot name the men who were bribed, or but a few of them; but I have seen men convicted of murder when the murdered man had no name that was known to his triers, and I can believe that men were bribed, 

although I cannot name the men who were bribed. 

Mr. CARPENTER. Did the Senator ever know a man convicted 

of murder when nobody was dead T 

Mr. THURMAN. I did not; but that would have been a mere witticism if my friend ha-d asked it. I think there is corvus delicti 

enough here, as my friend from Mississippi [Mr . .ALcoRNrsuggests. 

l believe that this election is an invalid election; but, sir, my believing that does not preclude my voting to expel upon the same facts, 

because whether the evidence is sufficient or not to prove the election 

to be invaJid, the turpitude of the member is equal in either case, 

and the expulsion will be for good cause, and will be in the exercise 

of the legal discretion of the Senate. 

Mr. MORTON. Mr. President, I had not expected to speak today, and I am hardly prepared to do so; but as there is much execu- tive business that ought to be disposed of by the Senate, I move that the Senate now proceed to the consideration of executive busi- ness. 

Mr. THURMAN. I suggest to the Senator from Indiana that possibly-! do not know it to be the fact-there may be some others who 

wish to speak to-day. I do not. 

Mr. MORTON. If there are, I will not insist on my motion. 

Mr. THURMAN. If there are no others who wish to speak, I will 

cheerfully Yote for the motion. 

Mr. CONKLING. I ask the Senator to forbear the motion· for a mo- ment. 

Mr. MORTON. I withdraw it. 

Mr. CONKLING. I venture to suggest to the Senator from Indiana, 

although I do not wish to interfere with the convenience of any Senator, that if there are further sugiCstions to be made or further debate to be had· upon the form or order of this proceeding, we had 

better not lose this day, it being now only one o'clock. If any ar- rangement is to be arrived at as to the order in which these questions are to be taken, that can be done as well now, although Senators may 

not be prepared to proceed with their arguments upon the merits of 

the case. Therefore I hope that we shall not adjourn until any 

arrangement as to the order of business, or any understanding in 

that regard which is to be mooted against the amendment sha.ll be 

disposed of. When we come back on . Monday, if the Senator from 

Indiana has the floor, he does not want to devote his time to considering questions of amendment or questions of the order of business; 

and as it is now one o'clock, I think if we can employ some time in 

making an end to any further suggestions a-s to how the vote is to be 

taken, 1t would be economical to do that. 

Mr. SCHURZ. If the Senator from Indiana will permit me, I think 

that sugge~tion is a very proper one; but I believe the whole matter 

wiU depend upon the intention of the Senator from Connecticut. If 

he insists on his amendment, then the question is solved; then we shall have to vote upon it first. If he does not-if he is ready to 

withdraw it-that will open the whole question. 

Mr. CONKLING. No; I beg pardon; that is not the Mitual;ion of 

the case. It depends rather in that regard upou the intention of the 

Senator from Michigan, who has au amendment which precedes the 

amendment of the Senator from Connecticut. 

Mr. SCHURZ. I understand that. 

Mr. CONKLING. There are three propositions pending now, and 

the first in order is the amendment of the Senator from Michigan. 

Mr. SCHURZ. I understand that. 

::Ur. CONKLING. If the Senator from Connecticut withdraws, the 

other amendment would fall, though the Senator from Michigan bas 

avowed a willingness to withdraw it. 

Mr. SCHURZ. Even if the Senator from Michigan withdraws his 

amendment to the amendment, it would not clear the track for a vote on the resolution. That would depend on the Senator from 

Connecticut. 

Mr. MORTON. If I may be allowed to make a suggestion, I will 

inquire what can be done now in the way of making an arrangement. 

There is no consent; I do not give mine, as I said some time ago. I 

know nothing now to do but to allow the discussion to go on until 

the time comes for a vote. 

Mr. CONKLING. The Senator asks what agreement can be made. 

Suppose the Senators withdraw their amendments. Certainly no- body can object to that. 

Mr. MORTON. That would not settle anything. 

Mr. FERRY, of Michigan. I have several times expressed my willingness to withdraw my amendment, if the Senator from Connecticut withdraws his; but mine is dependent on his, and should rest if 

it rests; if he 'vithdraws his, mine falls with it. I am disposed to 

withdraw it, BQ as to bring the Senate to a vote on the resolution 

reported by the committee. 

Mr. MORTON. I tried to be distinctly understood as stating that 

I gave my consent to no arrangement. 

Mr. FERRY, of Connecticut. That was the reason why I did not 

withdraw my ·amendment. Two Senators objected to any arrangemont. I am, therefore, compelled to let my amendment stand. 

Mr. MORTON. I now,forthe reasons I stated, renew my motion to 

go into executive session. I know there is business enough there to 

occupy this afternoon. 

The motion was a~reed to; and the Senate proceeded to the con- sideration of executive business. 

After four hours and fifteen minutes spent in executive session, the 

doors were re-opened; and on motion of Mr. ANTHONY the Senate 

(at five o'clock and twenty-five minutes p.m.) adjourned to meet on Monday next at twelve o'clock m. 

IN THE SENATE. 

MONDAY, March 24, 1873. 

The Senate met at twelve o'clock m. Prayer by Rev. J.P. NEWMAN, D. D. 

The journal of the proceedings of Saturday last was read and 

approved. 

RESIGNATION OF SENATOR CALDWELL. 

The VICE-PRESIDENT. The Chair will lay before the Senate the 

notification of the resignation of .Mr. CALDWELL as a Senator of the 

United States. The Secretary will read it. 

The chief clerk read as follows: W ABHINGTON, D. C., March 24, 1873. 

Sm: I do hereby very respectfully notify you, and through you the Senate of the 

United States, that I have resigned, and do resign, my seat in that body as a Sen- ator from the State of' Kansas; and that I have forwarded by mail, postage prepaid addressed to the chief executive officer of that State, at Topeka, Ka.nsaa, n resuma: tion in the following form, to wit: .. 

" UNITED STATES SENATB·CHA.MJ3BR, 

"March 24, 1873. 

"Sm: I hereby respectfully tender yon my r68ignation as a Senator of the United 

States from the State of Kansll8, to take effect immediately. "Very respectfully, your obedient servant, 

"ALEXANDER CALDWELL. 

"His Excellency the GoVERNOR OF KANsAS, Topeka, Kansa~~." 

I have also delivered in person to Ron. Thomas A. Osborn the governor of 

Kansas, now in this city, a duplicate cfthe paper so forwarded, !Wd whose aoknowl. 

edgment of the receipt thereof is herewith mclosed. 

Very respectfully, your obedient servant, 

Hon. :BID.'"RY WILSON, 

Vice-President of the United Statu. 

ALEXANDER CALDWELL. 

WASHINGTON, D. C., March 24, 1873. 

Sm: I hereby acknowledge the receipt of your letter of this day, resi~g your sent in the Senate of-the United States aa a Senator from the Stat-e of Kansas. 

Very respectfully, your obedient servant, 

Hon. A. CALDWELL, Wa~hington, D. 0. 

THOMAS A. OSBORN, 

Governor of Kansas. 

WITHDRAWAL OF PAPERS. 

Mr. SHERMAN. I ask leave to withdraw the papers of J.P. Rader; 

also, the papers of Butler, Miller & Co.; also the papers of Hawks, 

Miller & Co. I understand there has been no unfavorable report on these cases, and the papers are to be withdrawn to be produced before 

other departments of the Government. 

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

On motion of Mr. DORSEY, it was 

Ordered., That C. :M. Lockwood have leave to withdraw his petition and papers from the files of the Senate. 
1873. CONGRESSIONAL RECORD. 165 

ORDER OF BUSINESS. 

Mr. WRIGH'f. I wish to inquire of the chairman of the Committeo on Privileges and Elections whether he proposes to take any further steps upon the resolution which ha.s been before the Senate in 

regard to Mr. Caldwell. 

Mr. MORTON. I shall make a statement to the Senate on that subject in a few moments. 

Mr. WRIGHT. I desire to say that a.s soon a.s t.hat matter shall be 

ont of the way, as I suppose it will be now, I shall call the attention 

of the Senate to the CLAYTON case, and ask action upon it. 

THE CONGRESSIONAL RECORD. 

Mr. ANTHONY. The Committee on Printing, to whom was referred a resolution to cause to be printed and bound, with suitable indexes, as soon a.s practicable after the close of the present session, two copies 

of the CoNGRESSIONAL RECORD for each Senator, have instructed me to 

report it back with an amendment in the form of a substitute, and to 

a.ak for its present consideration. 

There being no objection, the Senate proceeded to consider the resolution. 

The amendment of the Committee on Printing was to strike out all 

after the word "resolved" and insert : 

That there be printed and bonnd, with an index to be preparon under the direction of tho Committee on Printing, of the CONGRESSIONAL RECORD for the present executive session of the Senate, ten copiea for eaeh Senator, five copies for en.ch 

member of the House of Representatives, two copies for each Executive Dep~. 

ment of the Government, five copies for the Library of Congress, five copies for 

the library of the Senate, five copies for the library of the Howte, and one hnndred copies which may be sold by the Congressional Printer at the cost of pnper, 

press-work, and bindiilg. 

Mr. ANTHONY. I propose to modify the amendment by inserting 

" three hundre<l" instead. of "one hundred" as the number of copies 

to be printed for sale; also by adding the Vice-President; and if it 

has been the custom to furnish the Secretary of the Senate and the 

Sergeant-at-Arms with copies, I would include them also. Th~ VICE-PRESIDENT. The amendment of the committee will 

be so modified if there is no object;ion, and it will be read as modified. 

The chief clerk read as folJows : 

ReaolvecL, That there be printed and bonnd, with an index to be prepared nnder 

the direction of the Committee on Printing, of the CONGRESSIONAL REcoRD for the 

present executive session of the Senate, ten copies for each Senator, the VicePresident, and Secretary of the Senate, five copies for each member of the House 

of Representatives, two copies for each Executive Department of the Government, 

five copies for the Library of Congress, five copies for the library of the Senate, five 

copies for the library of the House, and three hnndred copies, which may be sold 

by the Congressional Printer at the cost of paper, press-work, and binding. 

The amendment was agreed to. • The resolution, as amended, was adopted. 

VISITORS TO WEST POINT. 

The VICE-PRESIDENT. The law makes it the duty of the Chair to 

appoint two members of the Senate upon the Board of Visitors to the 

Military Academy at West Point. Under this authority the Chair c.a.ppoints the Senator from Ohio [Mr. SHERMAN] and the Senator from 

Kentucky, [1\Ir. STEVENSON.) 

THE CALDWELL CASE. 

Mr. MORTON. Mr. President, we have had noti_ce this morning of 

the resignation of Mr. Caldwell and that it hati been accepted by the 

governor of Kansae. It is hardly competent for the Senate to expel • a man who is not a. member or to declare a seat vacant that is already 

vacant hy resignation. Under the circumstances, I consider my duty 

in this ca.se as chairman of the Committee on Privileges and Elections 

at an end. 

CHARGES AGAINST SENATOR CLAYTON. 

Mr. WRIGHT. I now move that the Senate proceed to the consideration of the resolution reported by the select committee in the case of the Senator from Arkansas, [Mr. CLAYTON.] I simply wish to get 

it before the Senate, and then I will give way to other matters if it is 

desired. 

Mr. FENTON. I had intended to address the Senate to-day on both 

the propositions relating to Mr. Caldwell. I had delayed addressing 

the Senate, hoping to see in print the remarks of my colleague, [Mr. 

CoNKLING,] to which I wished in part to reply. I ehr~ll forbear making the speech that I intended to make, although I believe the res- olution is still before the Senate. I rise now more for the purpose 

of asking the Senator from Indiana what disposition, if any, will be 

made of the resolution. It ha.s not been disposed of, notwithstanding 

the resignation of Mr. Caldwell. 

Mr. MORTON. I stated to the Senate that nuder the circumstances 

I considered my duty at an end in r~gard to the matter. The resolution has not been formally disposed of; it is on the table for the 

Senate to take any action that they may think proper to take; but 

I consider th.at;my duty is performed. I do not wish to interfere with tll~ Senator m any way. 

Mr. FENTON. I llave no wish to address the Senate now. I 

haruly think it would be proper, under the circumstances, to con- tinue thiil discussion. 

Mr. WRIGHT. I insist on my motion. I suppose that the Caldwell case is out of the way entirely. The VICE-PRESIDENT. The Senator from Iowa moves that the 

Senate proceed to the consideration of the ca.se of Mr. CLAYTON, of A.rkansa~:~. 

The question being put, it was declared that the motion was agreed to. 

Mr. THURMAN. I ask a divisi•n of the Senate on the question of 

taking up that case. I desire to say, in respect to it, that I am in this 

situation, and I believe it is the situation of nine-tenths of the Senate : I have never found the time to read the testimony in that case. It is very voluminous. If I am not mistaken, there are seven or eight 

hundred printed pages of testimony in the case; I know there are so many that I have never been able to :find time to read it. There have 

been two reports in this case, I think, .one made at the session before 

the la.st, and one made at the last session. Now, sir, a vote to adopt 

the resolution of the committee or not to adopt it, under these circumstances, would be no expression of the opinion of the Senate; it would 

be simply an expression of the opinion of the majority or the mino~ 

ity of that committee. The Senate has not read that testimony. I 

think I may affirm that in respect to nine-tenths of them, perhaps; 

certainly I think I may say it in respect to more than three-fourths of 

them. Therefore the passage of the resolution or the defeat of the 

resolution reported by the majority of that committee will be no ex- pression whatsoever of the Senate. 

For this reason, I think the matter should go over until the next 

session, so that Senators may read and decide it for themselves. If 

there ever was a case, so far as I can see into it from looking into the 

reports of the committee, glancing at the majority and minority re- ports, that was simply a question of fact, or rather a multitude of 

questions of fa.et, this is one. Therefore, if we are to vote understandingly upon it, if our vote is to be an expression of opinion that 

will be of any service to anybody, or any disservice to anybody, we ought to have time to look into this testimony and form our judgment 

upon it; otherwise I say it is nothing but the judgment of the ma- jority or minority of the committee, according as the vote may prevail. 

Mr. WRIGI;[T. The committee was appointed in this case about 

fifteen months eince. The Senator implicated, in his place here demanded this investigation. Near the close of the session, in Jun6 

last, about the 1st of J nne as I now remember, a partial report was made from the committee, developing to the Senate the views enter-: 

tained by the majority upon the questions of fact. That report has 

been before the Senate from that time until this. About a month 

since the final report was made, accompanied by the testimony. Why 

the testimony was not reported before is stated in the partial as well as in the final report. If the testimony is not very fully referred 

to in the majority report, it is certainly quite fully 1·eferred to in the 

minority report. 

I say a month since this testimony was presented to the Senate; 

and now the Senate is asked by the Senator from Ohio, in the case of a Senator charged with matters that go to his right to hold a seat on this floor, in a caee where the charges were made more than a year 

ago, and where the report was made before the report that we have now been considering, or about the same time, and long before the 

charges were made against the Senator from Kansas-the Senate is 

asked to say that these charges shall be still held over the head of 

the Senator from Arkansas, that we shall adjourn, and the case sha.ll 

go over until December, because Senators have not had an opportu-: 

nity to examine this testimony. 

I feel well assnred that the Senator must be mistaken with refer- ence to the readiness of the Senate to act on this ca.ae. It is true that 

the testimony covers some three or four hundred pages, but it 

is just as true that any Senator in passing through this testimony can see at a glance, almost, that a very large portion of it has nothing 

whatever to do with the questions of fact involved; and a discussion 

here of a few hours, in my judgment, will develop the facts to any 

Senator so that he will be able to understand them and vot-e under- ·standingly on the questions involved. 

I therefore appeal to the Senate that, as a matter of justice to the 

Senator from Arkansas, as a matter of justice to this committee, a.s a matter of justice to the body, as a matter of justice to the country, 

they shall take up this case and dispose of it before the adjournment. 

I think it was the understanding when we took up the Caldwell case that this should follow. I think that we expected to dispose of this ca.se before our adjournment. Now, why should there be any hesitation or delay Y 

So far as I am concerned! I do not propose to say a. word in the first 

instance, notwithstanding I made the report. The report of the ma- jority of the committee does not invoke any action, because they :find 

upon this record that there is nothing to implicate the Senator from 

Arkansas. If there be any action invoked at the hands of the Senate, 

it must come from the minority or from those not prepared to agree 

with the majority. Substantially, all that the majority of lhe com- mittee ask is that we shall be discharged from the further consideration of tho question. 

In conclusion, I will say that I supposed, in view of the announce- ment made by the Chair that the motion had been carried to take up 

this matter, there was really no question before the Senate. I underst.and, however, the Senator from Ohio now calls for a division. B~­

fore that division is had, I appeal to every Senator here, without re- gard to party, as he would have justice done himself under like circumstances, as be would deal justice to all men, in justice to this Senator, and in justice to the body, that thili case shall be taken up and 

disposed of. 

Mr. CLAYTON. If this case is allowed to go over until next winter, 

one-third of my entire official term will have been occupied in the in-
166 CONGRESSIONAL RECORD. MARCH 24, 

vestigation of this case. Such action, in my opinion, will furnish a very practical illusti·ation of the law's delay. I always suppo~ed that 

when a member of the Senate submitted himself to the adjudication 

of the body, he was entitled to a speedy trial, as persons are in all 

other courts and in all other legislative bodies. I think it is due to 

rue; I think it is due to the State I in part represent, or misrepresent, 

if the report of the minority of the committee be correct. If I misrepresent it, I should be out of this place, and the legislature of the State, 

which is now in session, should have the privilege of putting some one here to fill my place. The facts have been investigated, and they 

should be acted upon. It is due to the State of Arkansas that this re- port should be taken up and final action had upon it. I do appeal to 

all Senators, as they wollld wish to have justice done them, not only 

here but elsewhere, to allow this case to be taken up .and disposed of. 

Why sbollld it be delayed now Y It may. be said that Senators desire 

to go to their homes. Is that a rea-sonY Are we not here to transact 

the public business Y It may be said that this ca-se will elicit discussion. That is another reason why it should be taken up now. If it 

is left to go over until next winter, the other House will be waiting 

upon our action at a great expense to the country. 

I hold, Mr. President, that nbw is the time to take up this case, and 

if Senators are not familiar with the testimony let them take time to 

make themselves familiar with jt, I do ask, as my right, that the 

Senate will act upon this case before it adjourns, let the final result 

of that action be what it may. 

Mr. THURMAN. Mr. President, I certainly feel the greatest reluct-ance in the world in suggesting the postponement of the consideration of charges made against a fellow-member in this body; and 

nothing but a desire to do exact justice could induce me for one moment to make any such suggestion. If the Senate has rea.d this 

testimony and is prep:ued to vote upon it, I shall not object certainly 

to its doing so. I can do what will then be my duty; not having 

read one word of_ the testimony, I can refrain from voting. If Senators here can say that they have read this testimony and are prepared 

to vote upon it, well and good; let it be decided, and the quicker the 

be'tter; but if they cannot say that, if they are in the same category 

that I am, if they have not read one word of the testimony, or at least 

not sufficient to form auy opinion at all upon it, then I say that if you 

take this case up, unless you are going to spend sufficient time here 

to go into all this testimony and consider it all, read it, scan it, 

and compare it, a vote of the Senate will be no decision of the Senate 

at all, but simply an acquiescence in the report of the majority or a dissent from that report. 

The Senator from Iowa made two remarks that I diu not comprehend at all. One was that he thought there was an understanding 

that this case should be taken up. I never heard of any such understanding. I have seen it stated in the newspapers that itwasagreed 

upon in a caucus of the republican members, to which they failed to 

do me the honor to send me an invitation, to take up this case; but 

surely I was not a party to that. Nobody asked me to attend it, and 

I certainly did not attend unasked; and, therefore, the understanding 

of which the Senator speaks must be some nnderstanding outside of 

this chamber, I am quite sure there has been no understanding inside of it. 

The Senator made another remark that I did not comprehend. He 

says the case should be taken up and acted on in justice to the com- mittee. What has the committee to do with this business, that there 

is justice or injustice to it' Where is the injnstice to this committee 

that we ask time to see whether the committee is right; that, before we follow its judgment implicitly, we do what the Constitution re- quires us to do, think a little for ourselves f Where is· the injustice 

to the committee Y We never have devolved all our powers upon any 

committee. A. committee is the mere instrument of the Senate, and 

not a supreme arbiter either upon facts or upon law. Ea{}h Senator 

must decide for himself. Although great respect is due to the report 

of the committee, and none will pay greater respect to it than I will, 

and it may strongly influence my judgment, although no one habitually pays more respect to the opinions of a committee that has care- fully investigated a case than I do, and especially a case of this sort, 

yet I must, if I discharge my duty at all, have some opportunity to 

examine it. I have had no such opportunity here. This report, it is 

true, has been upon our tables for about a month. How has it been 

since this report was laid upon our tables f The greater part of the 

last session after this report came upon our tables, I with others of 

the Senate was upon a committee sitting at the same time that the 

Senate was sitting, pursuing another investigation ordered by the 

Senate, and we had no time to think about anything else. We had 

to neglect our public duties here to attend to that investigation. 

Since this Senate ha-s convened in special session we have had the 

whole time taken up with the very interesting ca.se which has just 

terminated this morning. Nobody has had any time to investigate 

this case except the members of the committee themselves. 

Under these circumstances I do say (and I should say it if I were the member himself who is accused here) that if the decision of the 

Senate upon this case is to have any weight in the country at all, it 

must be a decision after the Senate has had time to investigate aud 

possess itself of the facts. Any other decision would be worth very little indeed. 

:Mr. WRIGHT. I desire to a<l<l only one word to what I have 

already said. In reference to the matter of understanding, I have 

said upon this floor more than once, at the time and before the Caldwell case wa-s taken up, that I proposed to press the CLAYTON caso immediately after the decision of the Caldwell case. I do not know 

that the Senator from Ohio bad anything to do with it, but I know it wa-s understood here, and has been understood from the commence- ment of this session, that, if we did no more, we were at least to clear 

the criminal docket ; we were to get these criminal cases, so to speak, 

out of the way, so that we could come back here next session and go 

to the civil docket, the business that we legitimately and properly come here to dispose of, without any hinderance or delay so far as these cases were concerned. 

Now, so far as the matter of justice to the committee is concerned, we having made this report, as I have stated, a partial report, months 

ago, anu afterward having made this other report, I think it a matter of justice to us and to every committee that makes a report of 

this character, to say nothing of justice to the Senator concerned, 

that the matter should be got out of the way, and that the committee 

should no longer have the case upon their hands. 

I am not aware that any other Senator is in the condition of the Senator from Ohio. He alone gets up here and says that be is unprepared to 

decide the case, and therefore he takes it for granted that every other 

Senator is in the same situation. Now, I kindly and humbly submit 

to him that whi1e we are engaged in the consideration of the case ho can take this record, and go to the privacy of his library, and there, 

with his pencil in band, and as sharp as he can make it, read it carefully 

and note it as he goes along, and I doubt not he will be prepared to 

decide the case. I will give him all the time necessary for that, so far as I am concerned, and I doubt not the Senate will do the same thing. 

I trust the Senate will adopt this proposition ; that the vote by 

which it has already indicated its readiness to take up the resolution 

will be followed up on the division, and that the resolution will be 

before the Senate. 

Mr. NORWOOD. Mr. President, I regret exceedingly that the Senator from Iowa is pressing this case at this time. By looking at tho 

report, the Senate will find that it was submitted to the Senate on the 26th day of February. The report in the Caldwell case was submitted to the Senate on the 17th day of February. It was here, 

therefore, nine days before this committee made its report. 

Tile honorable Senator from Iowa complains that this committee 

shoulU be delayed by the Senate refusing to take action upon its 

report, when the committee was appointed over a year ago. Suppose 

it was appointed over a year ago; when did the committee lay before 

the Senate the result of its action T It commenced this investigation 

in January, 1872. It did not close the testimony untill\Iay 14, 1872. 

Then the majority of the committee made a partial report, as it was c'tl.lled, and in that report especially requested the Senate to suspend 

judgment and not to consider the question, and stated that they 

would subsequently make a fuller report, and that fuller report has 

only been laid upon the desks of Senators since the 26th day of Febmary last. 

As to the rea-sons why the committee did not act sooner, it is un- necessary for me to state them to the Senate. They are known to the 

committee, and they are satisfactory to the committee, both the ma- jority and the minority. We bad a great deal of labor to do in re- viewing this testimony before we could get it in proper shape to lay 

it before the Senate. That is neither here nor there. 

Since the report has been before, the Senate, I ask Senators, what 

time have they had to investigatejt f As stated by tho Senator from 

Ohio, it is essentially a case of fact. We have discussed the law for 

two weeks past applicable to this very case, and now we come to the 

consideration of the facts in order to apply that law ; and I ask any 

Senator to state whether be has reacl carefully, from the beginning to 

the end, the testimony that bas been reported by tho committee. 

The honorable Senator on my right [Mr. SAUI.SBURY] says he has 

not bad time to read a page of it. We know how business prossed ·upon us from the 26th day of February to the close of the last ses- sion; we know then .that upon Thursday following the da.y of inauguration this Senate' asEembled, and immediately took up the Caldwell case, and we know that day after day ha-s been devoted to the 

discussion of the law and the facts in that ca-se alone, and that we have been troubled, vexed as to the delicacy of the legal points involved in that case. And now I say to the Senator from Iowa, and I 

say to the Senator from Arkansa-s who is under investigation, that if, 

under these circumstances, they press this case here, let the judgment 

of the Senate be p1'o or con, the country will say that the decision was not based upon due consideration, if they do not go further and say 

that it was a snap judgment. · Who is concerned in this except the Senate and the Senator from 

Arkansas Y What has the country at la.rge to do with this question f 

What has the State of ArkansiJ..s to do with this question T She is 

represented as long as the Senator's scat is filled here. He is entitled 

to his vote if this case were postponed for three or four years to 

come; and it is due him, it is due to the Senate, it is due to the precedent that may be set in a case like this, that it sbollld have a full 

and fair investigation, and that if the Senator from Arkansas is to be 

acquitted of these charges, he shall be acquitted after we have fully 

considered the law and the facts, aud no other verdict will be received 

with satisfaction by the country. 

1\!r. WRIGHT. I wish to make one inquiry of the Senator from 

Georgia, whether I am to understand that he is not prepared himself 

to go on with this investigation Y 

Mr. NORWOOD. I say that, so far as I am individually concerned-
1873. CONGRESSIONAL· REC-ORD .. 

and I intended to make that statement when I got np-1 am suffering 

with as severe a cold as I ever probably had, and I speak with great 

la.bor; and if this case is now to go on, tbe remarks that I intended to submit to the Senate upon it will have to be postponed or for<wone. I cannot now submit any remarks upon it at all. I shall hav~, therefor~. to rest content with the remarks which I have maue in the views of the minority. I am utterly unable to go on with this case to-day. I perhaps might be able to speak to-morrow, but I 

cannot tell. When I came to the Senate this morning, I expected, 

when the Caldwell case was taken up, to go back to my room. Now 

this matter is precipitated on me, and I am not able to go on with it. 

Mr. WRIGHT. Then I understand that the objection of the Senator to going on, so far as he himself is concerned, is from indisposition at present, and not because he is not sufficiently acquainted with 

the case to go ou. Mr. NORWOOD. I do not place it upon my not being sufficiently 

acquainted with the facts. I presume that I am as well acquainted 

with them as any member on this floor, and much better than any, 

excepting the other two members of the committee. I do not put it 

upon that ground at all. I put it upon the ground that I do not believe the other Senators here who are to pass judgment as judges and 

find a verdict as jurors have bad time to investigate the facts in this 

case,-ttnd that it is due to them, it is due to the Senator from Arkansas, that the case should not be considered at this session, unless we adjourn over for several days in order to give time for the investigation. The other consideration is personal to myself. I would not be 

able to speak to-day if the case were taken up. 

Mr. WRIGHT. I made the inquiry I did for the reason that, if the case were before the Senate, then for any reason personal to the Senator from Georgia, wha is a member of the committee, I should cer- tainly not be disposed to press it if he should ask a postponement; 

but I want the case before the Senate, and then if he asks that time 

shall be given him before he presents his remarks, I shall certainly 

not interpose any objection. So far as other Senators are concerned, 

I t.hink there is a mistake with reference to the readiness of the Senate to act upon the case. I now wish to ask the Senator from Arkansas a question, whether 

there is a session of the general assembly of his State next winter T 

Mr. CLAYTON. No, sir; the sessions are biennial. 

Mr. WRIGHT. Then there is a reason, it seems to me, which is 

insurmountable, and one that there can be no good answer to. I un- derstand the leuislature of Arkansas is now in session. 

:Mr. NORWOOD. Why, Mr. President, if the Senator will pardon 

me, there is only one contingency in which the meeting of the le~isla.tnre of Arkansas would be of any value a.s a suggestion here, and 

that would be if the Sena.tor's seat were declared vacant. If that were the case, ha.s not the governor of that State the appointing 

power to fill a vacancy Y 

Mr. WRIGHT. I know that very well, Mr. President; but I know 

just as well that, in view of the electing power, the body that elects 

Senators to this body, when you ·may refer a vacancy to that body 

rather than to a governor, it is always preferable; and it seems to me that there is an eminently good reason for action now in this fact 

alone, in view of the position the Senator insists on. He certainly 

will expect, if his views are concurred in, that the seat will be vacant or the Senator from Arkansas expelled. If that be so, it seems to me the Senate ought to decide the question now and send it to the legislature of Arkansas that they may elect a successor. Mr. ALCORN. It is true that this is a question of importance. 

Without professing to be 3cqnainted with the facts in detail, I think we are all agreed that it is a question of very grave importance. 

Charges were preferred against a Senator in the Congress of the 

United States; the matter was referred to a special committee; the 

committee has reported; and, I care not whether the facts may have 

boon shown to be of sufficient importance in the first place to war- rant the Senate in taking this course or not, it is nevert.heless important to dispose of it on account of the position that it holds here 

before the country and before the Senate. 

Now, it is said on the part of Senators that they are not prepared; 

that they have not examined the testimony in this case. I ask, what 

is the duty of the Senate Y I submit to the Senate, upon the question 

of its duty, is it not the duty of the Senate to dispose of this case as one now pressing npon its attention f It is before them; they owe a duty to the country; and that duty is to proceed with the discharge of the business that is pressing upon them before they undertake to adjourn this body. 

At the next session of Congress will any Senator come here better 

prepared to go forward to the decision and adjudication of this question than he is to-day f Where is the Senator who has read the testimony f I apprehend that few have read it. Where is the Senator 

who understands it f I apprehencl there are few who understand it; 

and. I apprehend that when Congress shall meet here next December, 

the very same state of things will exist then that exists to-day. The 

Ca.ldwell case was investigated by Senators when the Caldwell case was taken up, and not until then. 

:Mr. NORWOOD. If the Senator will pardon me, I should like to ask 

him, will not Senators have more time from now until the meeting of 

the next session of Congress to examine this matter than they have 

had since the report was laid on our tables Y If they do not examine 

it, whose fault will it be f It is not our fault that we have not ex- amined it up to this time. 

Mr. ALCORN. They will, it is true, have more time, for the reason that the time is longer from now until the meeting of Con~ress than 

the time from the laying of this report on our table until this day; 

but the point I make is, that that time will not be appropriated to 

this question; that when we go away from here we shall leave the 

CLAYTON case just where it is; when we come back we shall find it 

just where we left it, and then we take it up, and, when it is opened, we will go forward upon our separate responsibilities to investigate 

it. I say that if this case to-day is opened, when the speeches are made on the part of the majority, each and every Senator here can follow the Senator opening the case in his exposition of it, with the 

testimony before him, and he can acqua.int himself with all the facts 

upon that side, the strong points of the case, and then upon the side 

of the minority. I apprehend that the honorable Senator from 

Georgia [Mr. NORWOOD] is not so much indisposed as be imagines 

himself to be. Be speaks this morning with great clearness ; he 

speaks with point and precision; he speaks with that force which is 

characteristic of that honorable Senator; and I have no doubt that 

when he hears this case read from the docket, and the statement 

made that it :is now before the Senate, that ailment whioh he now has upon him, that physical disability of which he complains, will" soon be removed, and he will perhaps derive a benefit from the exer-· cise that he will be called upon to undergo in the prosecution of the case. 

Mr. NORWOOD. That is a professional opinion, I suppose. 

Mr. ALCORN. That is a profesl!ional opinion. I give that as an expert. [Laughter.] I have oftentimes advised gentlemen in that 

way. [Laughter.] 

But, sir, there is one other view of the case that I w:ish to present. 

Does not the Senate owe something to the Senator who stands here 

arraigned before the country 7 It has been long since these charges were made. He bas come before t.he Senate and bas pleaded that the 

Senate might investigate and that the.Y might give their verdict on this q nestiou to the country. He sits here prepared to listen to the 

adjudication of the Senate on that question. Again and again be 

says, "I stand ready." Is it not, I submit, the duty of the Senate to go 

forward and render their verdict in his ca.se f 

Again, I repeat, I have not read the testimony, and again I say I dp 

not expect to read the testimony in this case until the case is opened ; 

and yon may defer it if yon please from now until next December1 and I do not expect on my part to look at the case between now anct. 

December; but when the case is opened on the part of the committee, 

I expect then to take up the report, as I do in all oases in which I am called upon to cast a vote, and examine it, as the case proceeds, for 

myself. The1·e is not a member af the Senate who cannot in one day's time, between now and the hour when he will be called upon to 

vote to-morrow, thoroughly investigate and be prepared to render 

such a verdict in this case as will be satisfactory to himself, and, I 

have no doubt, satisfactory to the country; but I say it is due to the · Senator from Arkansas that the case should be taken up and disposed of. · 

I know not, I repeat again, the extent of the charges or the proof 

that comes forward to establish those charges; but be they questions 

of great or small importance, nevertheless they are of sufficient importance to bring the. charges before the country against him. He 

stands here under indictment, and he asks that he may be tried, that 

his case may be passed upon, and I say that, sitting here as we do, it 

is our duty to come forward and render that verdict to-day, or rather 

to enter upon an investigation of the question and render our verdict 

when we shall have been po::,sessed of the facts and made acquainted 

with all the circumstances, and stand ready to render a verdict in the case. Mr. MORRILL, of Maine. I do not see for myself how we can avoid 

giving some consideration to this question at the present time. It 

seems to me, in the first place, it is due to the Senator from Arkansas 

that he should be heard at the present time. In the second place, what 

other time can the Senate of the United States assign to this duty 

better than the present 'f When we come here in December I am sure we shall not be in a condition to attend to this case. I shall consider, 

if the Senate of the United States postpone this question, that it is 

with an idea that it will hardly get an audience of the Senate at any 

time. A postponement of the case at the present moment will look 

to me like a general and indefinite postponement, for I hardly con- sider that gentlemen wi1l take this testimony home and in vacation 

post themselves up in regard to it; so that we shall come back here 

in December just as we leave now, and we shall come back here at a time and under circumstances when, according to my experience, and 

I submit whether it is not according to the experience of Senators 

generally, we shall be in no condition to hear this case. I ask Senators to consider how long this matter has been before the 

Senate. It was begun in the first session of the la-st Congress. It 

went over then under circumstances which I suppose everybody will 

agree were beyond the control of all parties connected with the transaction. It was not convenient to take it up at the last session. But 

without revealing anything in caucus or out of caucus, or anywhere 

else, referred to by my honorable friend from Ohio, I think it might be fairly inferred that this case of Mr. CLA. YTON would be among the 

subjects which were proper to be considered at this extra session of 

the Senate; and considering th~t we are here now with no pnb1ic 

engagement upon our bands, that this question is properly before us, 

that the postponement of it to the next session is nearly equivalent, 
168 CONGRESSIONAL RECORD. MARCH 24, 

in my judgment, to an indefinite postponement, I submit whether, in 

view of tho public service and the rights of the Senator concerned, 

it is not really our bounden duty to proceed to its consideration. 

The VICE-PRESIDENT. The Chair will put the question on the 

motion of the Hon a tor from Iowa. • The question being put, there were, on a division-ayes 28, noes 14. 

Mr. BAYARD. 1 ask for the yeas and nays on this subject. 

The yeas and nays were ordered. 

Mr. BAYARD. .Mr. Presidt'nt, it is perfectly natural in the Senator 

from Arkansas to desire an early and immediate disposition of his case. I entirely Rympathi~e with his desire that there should be a decision; and if that can , be reached even by personal inconvenience, 

provided that inconvenience is not to extend too far, it seems to me that the claim is entitled to very serious and very favorable consideration. 

The Senate are asked to sit in judgment upon the report of a com- mittee asking to be di~charged from the further consideration of these 

charges and exonerating the Senator from Arkansas from any impropriety in connection therewith; but there is also a minority of the 

committee who have submitted their views and who declare that the 

charges have been sustained, and propose action by the Senate as indicative of itB sentiment ou that subject. 

Tills report was made in manuscript, as I remember, and the date 

bears me out in saying on the 26th of February. How many days 

after that it was put in printed form ou our desks I do not know; I 

suppose several days after that time; but I do know this, that it came to us in the very last hours of a very busy session, when every hour, 

almost of night as well as day, wa,s occupied by the pressing consideration of appropriation bills for necessary expenses of the Government. 

The special se~ion th{ln ensued. Since that session has cont,inued, we have been gravely, and am.:iously, and laboriously considering a totally different case, and I believe that every man who did his duty 

in the Senate thought of but little else than of the facts and the law 

in connection with the case of Mr. Caldwell. Now, suddenly, we are asked to take up and dispose of, and dispose of in a very summary 

way, this grave case, affecting the character, perhaps the seat in this 

body, of one of our members. Sir, in considering that question we sit as judges. We are to act upon full knowledge of the fact.s, and we are to administer the law under our consciences and under our oaths. If time is to be taken for a proper examination of these four 

hundred and odd pages of printed testimony, if it is to be carefully 

weighed, how long will this session be prolonged, and are the Senate 

prepared to give that time until every member shall say," I am satisfied 

that I now, justly to the party charged and justly to the Senate, can decide upon the questions of Jaw and fact 7'1 If this case is to be 

aecided hastily! and without that opportunity, I shall Mk the Senate 

to excuse me from voting at all on the subject, for I desire to do justice, to stand as much between the party charged and an unjust 

attack as I desire to do my duty should the conviction of my mind 

lead me to the belief that the minority of the committee have been 

right in the view they have taken. 

I wish, therefore, the Senate to understand that I desire to act as a judge and to have judicial knowledge of that which I attempt t.o 

decide. If this case, after the extraordinary pressure upon our time 

and upon our health for the last few months, is to be called up and 

summarily decided, I shall not vote upon it. I would never do injustice to the sitting member; and yet at the same time I would be 

unwilling to make a declaration in his favor that I did not think was sustained by the facts. From me he shall have even-handed justice, 

and if I cannot obtain the opportunity to give me the information, 

that I may so act in my capacity as a judge between him an~ the 

Senate, I cannot act at all. And yet I say if the facts and the deductions of the majority are justified by the evidence, he is entitled to 

the vote of every man to sustain him, and mine he shall have if I can find those facts and find myself justified by the testimony taken by 

the committee. 

But, Mr. President, while I am desirous, and it is an absolute and 

sincere profession, tliat any man in this country charged shall have a speedy trial and a speedy opportunity to be exonerated of that which 

touches his personal character, while my respect for a man increa-ses 

because of his palpable desire that such opportunity shall be had as soon as possible, the condition of the Senate makes it very doubtful 

whether you can now give to the case of the Senator from ArkansM 

that degree of intelligent attention which will make the vote of the 

Senate decisive of anything. · . 

The judgment, to be of value, must be the result of careful, con- scientious examination. If it is made without that, it is valueless to 

him, it is valueless against him. The question is practjcally now, can 

such a judgment be reached ; have the Senate the time and the opportunity to reach itt I am of opinion that we have not the proper 

time. I do not say that if the Senate elect to take this up, I shall 

abandon the attempt to keep up with the facts; but I do say, in advance, that unless there is -the opportunity to understand these facts 

fully given, I shall not vote at all upon the subject. 

Mr. FERRY, of Connecticut. Mr. President, I have read the testimony in this case,· and, from the knowledge of the facts derived from 

that reading, I am convinced that even-handed justice will be reached 

by ~ah.i.~g ~p the ca_se and disposing of it now, rather than by postpomng 1t till next Winter. I have- no doubt that in the time which ·the discussion will naturally take before reaching a vote, the testimony can be read by Senators who are anxious to do so, calmly and 

intelligently, and a just conclusion reached by their minds. 

Mr. WRIGHT. Mr. President, I wish to say one thing to .disabuse 

the mind of the Senator from Delaware. I infer from what he says 

that he expects t.hat if this case shall be taken up, it will be pressed at once to a determination ; that there will be a disposition on the part 

of the majority of the committee to press the matter at once upon the 

attention of the Senate and have.a vote immediately. Now, I am sure there can be nothing further from my mind than this. 

It will be remembered that we were all taken by surprise this 

morning by the sudden disposition of the Caldwell case. There was nothing left to me but to press the CLAYTON cMe upon the at- .tention of the Senate, and get it before the Senate for action. Now, 

when that concb!lion shall be reached, that we have the case before 

as, I am sure the Senators will not see, on my part, any disposition 

to press it unduly, or to press them to a vote before there is an opportunity to investigate it. I have no expectatJion that a vote will 

be taken to-day. Indeed, my desire simply is now to have it before 

the Senate. When the Senate shall declare, by a vote, that it will 

proceed with the consideration of this case, I still have no objection, 

if it is the wish of the Senate, that it shall go over until to-morrow, 

and, indeed, in view of my feelings at present, I should prefer that course. Nevertheless, I think it due to myself and to the Senate 

that the vote should be taken getting the ca-se before the Senate, 

and, when it is before the Senate, there will be no disposition, I am sure, to press a vote against any Senator who shall insist that he is 

not prepared, after a fair opportunity, to vote upon the question. 

Mr. SAULSBURY. I do not intend to oppose taking up this case. I have not had an opportunity to examine the testimony, so as to 

make up an intelligent judgment upon the merits of the case. I have no objection to the cMe being taken up, with the distinct understanding that those of us who have not had the opportunity and 

have not examined the evidence may have full opportunity to do so 

before we are required to vote upon the subject. I do not want to 

vote blindly ; neither do I want to sit here in my seat and refuse to 

vote. I want to examine the testimony, every word of it, and I 

promise due diligence in the examination of the testimony if the case is taken up ; but I shall insist that no vote shall !Je pressed upon the 

Henate until we have all had full and ample opportunity to examine 

the testimony and come to a conclusion for ourselves. I shall not 

.feel satisfied to adopt the conclueion, either of the majority or the 

minority1 ftwithont having an opportunity to examine the testimony 

for myseu. I do not wish to delay the question; I do not wish to re- fuse to have the question heard; and I am willing to sit here until 

the middle of April, if it is necessary. I think we can afford to sit 

here until that time, as we are paid by the year, to dispose of the 

case, and I shall not want to see a vote pressed on the case until we have au opportunity to come to a conclusion for ourselves. 

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

Senator from Iowa, to take up the resolution in regard to the Senator 

from Arkansas, [Mr. CLAYTON.] 

Mr. HAMILTON, of Maryland. In this case I agreed to pair off with 

the Senator from Texas, [Mr. FLA..."iAGAN,] if after the reading of the 

testimony I should differ with him upon the question. He was for Mr. 

CLAYTON, and I, not knowing what my judgment w~uld be about it, 

agreed to pair with him upon those terms. Upon-this question I should 

vote for a continuance but for being· paired. I shall not vote at all 

under the circumstances. 

The question being taken by yeas and nays, resulted-yeas 36, nays 

14; as follows: 

YEAS-Messrs. Alcorn, Allison, Ames, Bogy, Boreman, Boutwell, Buckingham, 

Chandler, Uragin, Dorsey, Ferry of Connecticut, Ferry of Michigan, l'reliugh~:n, 

Goldthwaite, Hitchcock, Howe, Ingalls, Lewis, Logan, Mitchell, Morrill of · e, Morrill of Vermont, Morton, Oglesby, Patterson, Pratt, Ramsey, Robert8on, Sar· 

gent, Scott, Sherman, Spencer, Stewart, West, Windom, and Wrigbt-36. NAYS-Messrs. Bayard, Casserly, Davis, Fenton, Gordon, Hamilton of Texas, 

Kelly, McCreery, Merrimon, Norwood, Sauh!bury, St~venson, Stockton, and Thur· 

man-14. 

ABSENT-Messrs. Anthony, Brownlow, Cameron, Carpenter, Claytont.<J~~g, 

Conover, Cooper, Dennis, Edmunds, Flanagan, Gilbert, Hamilton of .lii.liJ."Yland, 

Hamlin, John.ston, Jones, Ransom, Schurz, Sprague, Swnner, Tipton, and Wad· 

leigh-22. 

So the motion was agreed to. 

The VICE-PRESIDENT. The resolution is before the Senate, and 

will be read. 

POSTAL SERVICE AND RAILROAD COMPANIES. 

Mr. WINDOM. With the consent of the Senator ·from Iowa. I offer 

the following resolution, and a-sk that it be printed and laid on the 

table: 

Resolved, That the Select Committee on Transportation Routes to the Sea-board 

be directed to inquire and report to the Senate at the next session as to the nature and extent of the obligations subsisting between the railroad companies and the 

postal servirie of the country; and whether any and what additional legislation is necessary t6 guard the postal service against interruption or injury by hostile 

action on the part of any or all of said railroad companies. 

Mr. FERRY, of Connecticut. I would inquire if the reception and 

order to print that resolution will prevent my making a point of or- der upon it when it shall be called up for consideration. I shall cer- tainly make the point of order upon the consideration of the resolu· 

tion. 

The VICE-PRESIDENT. The Chair thinks the present reception 

of the resolution would not interfere with that. 
1873. CONGRESSIONAL RECORD. 169" 

Mr. FERRY, of Connecticut. I do not object 'to its being printed. 

The resolution was ordered to lie upon the table and be printed. 

EMANCIPATION IN PORTO RICO. 

Mr. MORTON. I ask unanimous consent to offer the following 

resolutions, to be printed and laid on the table for the present: 

.Resolved, That the Senate of the United States have received with joy the in tel· 

ligence that the republican government of Spain have abolished slavery in the 

island of Porto Rico, and raised the colored people of that island from the condition 

of slaves to the ri~~;hts and privileges of citizeus of the Spanish republic. 

Resolved, That by this act the people of Spain have given new assurance to the 

world that in establishing republican institutions they are actuated by a genuine 

love of liberty and sincere re~ard for the natural ri~hts of all men ; and that it 

will be accepted as an omen of the power and perpetwty of the Spanish republic. 

The.resolutions were ordered to lie on the table and be printed. 

CHARGES AGAINST SENATOR CLAYTON. 

The Senate proceeded to the consideration of the following resolution, submitted by Mr. WRIGHT on the 11th instant : 

.Resolved, That the charges made and referred to the select committee for inves· 

tigation, affecting the offiCial character and conduct of Hon. POWELL CLAYTOX, are not sustained, arid that the committee be discharged from their further consideration. 

Mr. WRIGHT. I wish to suggest that perhaps it would be proper 

that the concluding part of that resolution should be omitted. The 

truth is that the committee fell with the last session of Congress. It 

is a resolution offered by myself; and so much of it as relates to the 

discharge of thfl committee, perhaps, should be omitted, inasmuch as the committee were discharged anyhow by operation of law. There 

will be no objection t.o that. 

The VICE-PRESIDENT. The resolution will be so modified, if 

there is no objection. 

The resolution, as modified, was read, as follows : 

Resolved, That the charges made and referred to a select committee of the Senate at the last Congress for investigation, affecting the official character and conduct. . of Hon. POWELL CLAYTON, are not sustained. 

Mr. WRIGHT. I came to the Senate this morning expecting that we should proceed with the Caldwell case. As I have already stated, 

my anxiety to get this case before the Senate was only for the purpose of having the case before it, and with no intention of pressing it 

at this time. 

It will be observed that the resolution which is before the Senate 

does not invoke any affirmative action ; and my purpose has been, if a resolution shall be offered by any person invoking the action of the 

Senate, to hear from the person who might present such resolution, 

before saying anything to the Senate myself. I have said also th:1t I am not at this time in a. condition to proceed with the discussion, or at least to open the discussion, if that would be proper or would be 

expected at the hands of the majority of the committee. Upon con- sultation with the member of the committee who agrees with me on this subject, we have not deemed that at our hands it was necessary 

that we should open the discussion, or say anything in support of 

the resolution. As I am assured from what has been said here that 

the Senate is. perhaps not prepared to proceed with the investigation 

to-day, unless the Senator from Georgia shall be disposed to proceed, 

I think it were better perhaps that we go into executive session 

and come here prepared to-morrow morning to proceed with the case. Mr. SHERMAN. Let the report be read. 

Mr. WRIGHT. It is suggested that the report be read, so as to get 

the facts before the Senate. I will theu send the report to the desk. 

Mr. STEW ART. Let the report be read, and if no one wants to 

talk we can vote. 

The VICE-PRESIDENT. The report will be read. 

Mr. WRIGHT. Before the clerk shall commence reading the report, 

I desire to say that he will find some difficulty, perhaps, in view of 

the manner the report is printed, in distinguishing between the partial report and the report which was made by the majority of the 

committee and known as the final report. 

The chief clerk read the following report, submitted by Mr. WRIGHT 

February 26, 1873: 

The underBigned select committee, to whom was asllifned th6 duty of inquiring into 

certain charges against Hon. POWELL CLAYTON, a member of this body f-rom the 

State of Arkansas, have had the same under consideration, and rubmit the following final report : 

On the lOth of Juno last they submitted what they denominated and whioh was accepted as a partial report, which they here incorporate to avoid repetition, and 

that the conclusion at which they have finally arrived may be the more readily understood: 

"Mr. MORRIJ.L, of Maine, on behalf of the chairman, Mr. WRIGHT, of Iowa, from 

the committee to inquire into certain allegations against Hon. POWELL CLAYTON, 

submitted the following report: 

"The special committee upon whom was imposed th6 duty of investigating certain, 

charges against Hon. POWELL CLAYTON, amemberofthisbody, beg leave tolr!Lbmitthe 

following partial report: 

"On the 9th of January, 1872, Yr. ScoTT, from tlle joint select committee to inquire into the condition of the late insurrectionary States, &c., reported te the 

Senate that in the prosecution of their inquiries the testimony of certain witnesses 

(Edward Wheeler and William G. Whipple, of Arkansas) 'tended to impeach the 

official character and conduct of a member of this body,' bnt as they held that 'the 

subject-matter to which said testimony related did not come within the limits of 

the investigation they were directed to make,' they declined to hear other wit. nes~es, and thereupon adopted the followiug resolution: 

"Resolved, That the committee report tlie testimony taken before the commit· tee affecting Senator ULAYTON and Mr. Edwards, a Representative from Arkan-

!las, to the Senate and llouse of Representatives, with a recommendation that each House talie such action as it may deem proper. " The testimony of Wheeler and Whipple, referred to in the report and resolu-

., tion, they also reported to the Senate for such action as might be lleemed a.dvis· 

able, and on the same day the Senate ado:pted the foll(}wing resolution: 

".Resolved, That the report of the committee and the testrn10ny accompanying be 

referred to a special committee of three, with power to send for persons and papers to investigate and report upon the charges therein contained against Hon. POWELL 

CLAYTON, a member of this body. "Pursuant to the command of the resolution and the powers thereby conferred, 

the committee met, on the 18th day of .January, and entered upon the discharge of 

their duties. 

".Tames L. Hodges, esq.J of Arkansas, appeared before them and asked leave to prosecute the charges, ana was permitted to do so, and accordingly appeared by 

himself and counsel, S. M. Barnes, esq. Senator CLAYTON also asked to appear as well in person as by counsel, which request was granted, and he designated as such 

counsel Hon. Thomas :M. Bowen and Hon. John McClure, of Arkall!la8. 

" Witnesses were subpmnaed from time to time, upon the request of the parties and a.s the committee deemed necessary. It is proper to state that the parties each 

demanded the attendance of many other witnesses, which demand was declinedt. 

but not until the committee were thorooghlysalisti.ed that they were p0886!186d oi 

the essential facts touching the matters submitted for their investigation. They. held almost daily sessions from the date last named until and including the 14th" 

day of May, when the testimony closed. During this time they examined thirty: ei~ht witnesses, a~.~d have before them, in form of documents and the testimony of 

Mid witnesses, matter covering about five thousand manuscript page11. 

"We are justified in saying that much of it was taken and received de bene ease. In other word.s, for the pro11ecution, it was claimed that they would IJe able to show certain combinations, conspiracies, and corrupt agreement8 which, if established, would make such testimony competent and refevant. For the defense it was insisted that this state of case could not be shown, and in no event could such 

testimony be admissible under the resolution of the Senate and the matter submitted for our investigation; but, in view of the possibility of its being so held, they 

submitted their testimony to meet the case supposed by the prosecution. 

"As it was impossible to say in advance what, in this respect, the testimony might finally establish, and as witnesses were in many instances here from a great 

distance and anxious to leave, we deemed it better to take the testimony, leaving the 

question of its ultimate relevancy to be determined when deciding ihe whole case.' 

This 11tate of the record rendered it necessary to examine with care the testimon,5 

of very many of the witnesses, to enable us to determine just what WM and waif not competent in view of the issues made. 

"ThiS work, to some extent, remains unperformed. It could not well be other· 

wise when we refer to the time the testimony closed and the other and constanti 

duties pressing upon each member of the committee . .A.s the session is drawing to a close, however, and we bold it but the plaine11t justice to a member of this 

body that it should at least be known what was the general result of our investi~ 

gation, we have deemed it best to submit the same to the Senate. We say this is due him, the Senate, and the country, and shall1188ume that this will be accepted aa U:ue by all without entering into argument in support of a proposition so _Plain: 

The charges affect the standing and iitfl.nence of one who has the equal <furnity 

and responsibility of any other member of this body before the country ana hil! 

constituency. If not sustained, it is eminently proper that he should be relieved, 

If sustained, then the Senate owes it to itself, its own dignity, it11 own purity, its own self-respect, that he should be removed, and the people of Arkansas have 

upon this floor one who may be their fit, proper, and chosen representative. 

"Thus impressed.and influenced, though unable, for reasons above stated, to arrange the tet;timony and report back such parts as they hold to be proper and 

relevant, and yet able to reach a conclusion, to them satisfactory, from therr recol· 

lection of the evidence at the time it was being submitted, and their subsequent ex~ 

amination-we say, thus impressed, we have deemed it our duty to submit this 

partial report, reserving the right, at a time when the pressure of other duties 

shall not be so great, to submit with the testimony a further and final report. 

"U it should be asked, Why not now submit all the testimony f we answer, First, because we know that much of it can have no possible bearing npon the 

question before us and the Senate~.and its publication would involve a large and most unnecessary expense. Seconruy, no useful end is to be gained by giving to the 

country a mass of testimony which only serves to show the bitternes11 of personal 

feeling existing between those prosecuting and their friends on one side, and the 

party accused and his friends on the other, which had its birth in the zeal of op· 

posing political factions, to blacken and disparage the party integrity of those 

opposing them; which would only tend to still further disturb and distract the 

Citizens of tbe State where they reside, and render more difficult the restoration of 

that peace and quiet so essential in all the States, and especiall:y those so lately 

in insurrection. And this course is the more justified from a conVIction, which we cannot now escape, that not a little of it was offered by the parties more with a view of making political capital against each other than in the hope or belief that 

it could have any influence upon the committee or throw light upon the subject- matter under investigation. We do not propose to be the instrument of a purpose, so foreign, and we most respectfully submit that the Senate should not and will not lend itself to the publication in advance of a mass of testimony which in no manner tends to elucidate the real question before them, and which, if published, 

while it might gratify the malevOlence of parties, could not possibly serve any 

useful end. ~t would be worse than waste paper. 

"We therefore submit this report, at present withholding the testimony, recom· mending that-action shall be delayed until we are able to more carefully arrange 

the immense record before us, and present it in a form which will enable the Senate 

t() act with greater safety and intelli~ence. 

"And now, having t.tated sometbrng of the work performed and the grounds 

which seem to us to justify the course pursued, we come to the consideration of 

those matters which were submitted for our investigation and a statement of the 

conclusion reached. In doing this it seems to be eminently proper, and, il!deed, 

logically necessary, to ascertain and settle the nature and scope of the charges made and the powers of the committee under the order of reference. "It will be seen that the report of the committee, which led to the present inquiry, states that the testimony submitted to them tended to impeach the official 

character and conduct of Senator CLAYTON. The resolution under which this com- mittee is acting directs that ti:u report of Mr. ScoTT,and the accompanying testimony be referred, witll power to send for persons and papers, to investigate the charges 

therein contained. We therefore necessarily go to the report thus referred, in the 

first instance to see wllat the charges are. But here we find nothing, for it is only stated generally that the testimony before them tended to impeach the official 

character a11d conduct of Senator CLAYTON. .All that is of particular value thus far or in this language iR, that the charge related to his otficial character and conduct. 

This of course must mean his official character ana conduct as a Senator. With 

his official acts in other positions we nave nothing to do, except as they may bear 

upon his offico as Senator. To illustrate; he wa.s ~overnor of the Stato of Arkan- sas up to the time of his election as a member of this body. Now, whether his 

conduct and character in the gubernatorial office were such as to merit condemnation or praise, whether his administration of that office was honest or dishonest, 

wise or unwise, corrupt or otherwise, is a matter of no moment whatever, except as it may bear, in some legitimate manner, upon his conduct and character in his 

present position. "Assuming for the Fresent that our inquiries are limited to matters subsequent to his election, not, o course, rejecting those antecedents, so far as they reflect 

light upon subsequent acts, we are led to inquire what these are; and here we are remitted to the testimony of Wheoler and Whipple, for as there are no specific charges in the report itself, the testimony of these witnesse~ must alone stand in 
170 CONGRESSIONAL _RECORD. MARCil 24, 

tbe place of charges, tho information, or indictment. Than this few thin~s could 

be more indefinite or unsatisfactory. Without, by any means, conceding tnat any • ne should be helcl to answer charges thus made, so entirely wanting in everything 

appt·oximating conciseness, clearness, or definiteness, we advert Yet-y briefly to some matt~rs to which tbeae witnesses most vaguely refer. 

"First. It is suggested rather than strongly claimed that Senator CLA.YTO:-< was indicted by the grand jury ot' the United States circuit court for Arkansas, in 

April, 1811, for a violation of the twenty-second section of the enforcement act, (16 

Stat. at Large, p.145,) in grantin~ a certificate of election, as governor, to General 

John Edwards, showing his election as a member of the House of Representatives 

in the ConJ:,rress of the United States. The facts in connection with the issuing of 

this certitkate will come under review in a subsequent part of this report, and wo content om·sel\"es at present with stating conclusions. And, first, tbe mere findina 

of the indictment would not of course so tend to impeach his official character an3 

conduct, nor of. course actually impeach it, as to demand action at the hands of tl10 

:::ionato. In the next place, if such finding possessed any significance, it would lose 

it all, where, as tho testimony and the record hore conclusiYely show, he was disdunged tilerofroru by tho judgment of the court at a. snbsequentterm, (in October 

last.,) nuder a demurrer to the indictment; not for any formal or t-echnical defect, 

but upon the broad aud substantive ground, to state it briefl_v, that the goyernor of a Ht.ate i~ not an 'ottlcer of election,' witilin the meaning of said election. This bein~ so, by the judgment of the conrt he stood acquitted and discharged of course of ul7legal wrong. Til on, if an officer, and tho act was not fraudulent-that is, if 

ho did not' fraudulently make any false certificate'-tbere wa.s no criminal liability, and if there was no corrnpt conduct or fraudulent act in this connection, it is submitted t!Jat all inquiry in this direction may bo dismissed. But more of this hereafter. 

" In tho second place it is suggested, again most vaguely-it cannot be conceded to hn.ve the ilie-nity of a. specific charge-that he, by himself or friends, tampered with the grana jury finding the indictment. Sena.tor CLAY'l"OX was in Washington City at the time the indictment was found, and t.here is scarcely a scintilla of evidence that he bad knowledge that such a thing was contemplated or threatened. 

There is certainly uo pretense of proof that lie, by l:.imself, or others acting for 

him, or at his ~nstance or request, made even the least attempt to influence the 

action of the grand jury presentin~ the indictment, and least of all would it be 

claimed that an)'""thing was done by htmself, or any one ever so remotely connected 

with him, which could by possibilit.y be regarded as either criminally or morally 

wrong. And when we add that it is worse than the sheerest pretense t.bat any- thing there attempted was in theloa.st connected with his official conduct or character, we dismiss this part of the case. "In the next place it is attempted to be shown that he improperly used his official 

position and influence as Senator to procure the removal of the witness Whipple from his office of district attorney, and General Catterson as marshal of the district 

of Arkansas. Whipple was district attorney and Catt-erson marshal at the time of 

finding the indictment. Roth these gentlemen had been more or less active in 

their opposition to Senator CLAYTON's election to the Senate, through a contest almost unprecedented in its bitterness, whether viewed politically or personally. This was particularly tmo of Colonel Whipple. Senator CLAYTOX may have been 

influenced, and doubtless was, not a little, U.. his efforts to procure their removal by tileir known opposition to him, as also by what he esteemed their unwarranted .course in connection with the procurement of the indictment. 

"It is not material to inquire whether there was anyt.hing in their conduct 

touching the latter matter to warrant his feelings and jud~cnt, since he did no more tl:Jan what other Senators are const-antly in the habit or doing, touching the 

1lisplacement of their enemies and the appointment of their friends. That the 

action of these parties, in connection with the indictment, was not the moving cause of his opposition, is clf-~'lr enough, from the fact that he was seekin~ their 

removal befot·e it was pre!'ented, as abundantly appears from their own testimony, wherein the allegecl charge is founll. In his conduct in t.his respect we fail to see any official misconduct, and especially so as it appears that since these removals . the executive and de~artment of justice have been successively, and more than once, appealed to by Qolonel Whipple and General Catterson and their friends for re-inst.atem~nt, and have been as frequently unsucc-essful. Whether it is ri,!!;ht or wrong for ono in his position to use h1s official infl.uence to procure removals is not for us to say. We onlv state and find that he exercised the right or privilege t.aken hy, if not concetled to, others; an act which, if ret;:!lrded as tending to • impeach his official character and conduct,' would be equauy so, probably, of every 

member of this body. "Turning now from these mat.ters arising subsequent to the election of Senator 

CLAYTON, we come to the case made touching bis election, and here a preliminary iuqpiry arises: What have we to do with that election t Recurring to the reso- lution raising the committee, and which must be accepted as the charter of our power, we remark again that thd t·eport of Mr. SCOTT sara that the testimony (and to which we must f.,.o to ascertain the charges, for there 1s nothing else) 'tends to impeach his ofl:icia conduct and character.' Then, the resolution under which we are acting directs us to investigate the char~es therein contained against Senator 

CLAYTON as a member of this bod:y. Now, g1ving to the record a fair and just con- struction, have we anything to do with hi8 election or the circumstances con- nected thet·ewith 1 Upon this subject at least one member of the committee enter- tains the gravest doubts. The argument suggesting and supporting these doubts 

is as follows : "Iu respect to the subject-matter referred to a committee, the rule is that they are not at liberty.to entertain any proposition or go into any inquiry which does not come within the direct purpose tor which the committee was appointed, as expressly or clearly implied in the authority conferred upon it, or which is not groumleii upon some paper which is referred to the consideration of the committee. 

(Cushing's Law and Practice of Legislative Assemblies, ss. 1906.) This is upon the clear principle that a committee, being a. creature of the body giving it life, 

is bound by, and is not at liberty to depart from, the order of reference. If any other rule were adopted, and it could depart from the order of reference, all buslneRs would, of course, be at an end, and endless confusion and contests between 

the body aml the committee would ensue, (ss. 1907.) •· Now, it is suggested t.hat, inasmuch as the report of the joint select committee, 

by Mr. ScO'lT, referred alone to testimony tending to impeach the official charac. ter aml co1./1uct of Se11ator CLAYTON, the order of reference took in and contem- platecl sur.-:1 matters alone, and that the resolution raising this committee must bo construed in tho light of that report, and the subject-matter of inquiry be thus 

limited; and hence, when it is directed that the committee shall investigate the 

charues contained in said report, (including the testimony of Wheeler and Whipple,) it was intended to cover and include ollly those bearing upon such official con- duct and character; for in that report there is nothing said abont fraud or illegality 

iu his election. Bnt here it is, perhaps, answered that the proposed inqmry is 

grounded upon the paper (the testimony aforesaid) referred for our considerat10n. 

'I'o this the reply is, true, but that paper must properly be construed as referring to such charges only as relate t-o or are connected wtth the principal inquiry; that 

is official conduct or character. If not, why did the committee omit all reference ~ bis election and the circumstances attending the same~ The answer is, they had power and authority th.emselves to inqnire into all matters bearing upon the ~:~tate of affairs in the State1 including frauds in elections, but not to such as bore 

upon the conduct of a memoer of the Senate or House after his election. "Voncedin~. however, that this view limits the inquiry unjustly1 let us look at the charges them~elves. And h~re the already great lengt~ of this report a.i!mouishes Uij to brev1ty, and espe01ally so as, when the testimony shall be finally summed up, it will necessa.ril_y demand a large portion of onr attention. 'l'his 

part of the case suggests two wquiries: first, as to matters occurring antecedent 

to the assembling of tbe general assembly which elected Senator CLAYTOX; sec· on illy, tllose immediately loading to ancl connected therewith. 

"Upon the first we are not clisposcd to enter. Ow· warrant for this is found in 

the principle obtaining and the natnre of the testimony, or rather the absence of 

it. It seems to us that upon principle we cannot enter upon tho numberless inquiries which would always be suggested in cases of this chamctcrpreoeding the election of the members wbose duty it is to elect a Senator, unless such conduct anu transactions clearly relate to and hear immediately upon the alleged frauds con- nected with such Senat-or's election. Not only so, uut it woultl seem that they must so color the transaction of the tiual election of the Senator as to lead to the conclusion that but fur them the result would havo been difterent. Thus, 

suppose Senator CLAYTO~ userl reprehensible means with the hope of securing tho 

election of some member or members in one or more d istrictshand such persons were either not elected or failed to Yote for him, or, if voting for im, ho had a clear ma- jority outside of those improperly elect-ed, would any one say or claim that his seat could bo declared vacant Y Or suppose, as in the case before us, that tho two houses of tho A.rkansa.s legislature, being the judges of the election, qualification, 

and return of their own member<~, have heard anu investigated all alleged frauds 

and given the members their seats, can this committee or the Senate go back of 

that action, and in this inquiry, whether treating it as a proceeding direct or collateral, say that such members were improperly elected, returned by the use of 

corrupt means, even if originating with Senat-or CLAYTON himself, and that therefore he was not legally elected 1 The statement of such propositions furnishes its own answer. Neithet·legally nor lo~ically could it be claimed that this committee 

would be called upon to go into a fieltl so boundless, and which, when explored, would throw no le~timate light upon the controversy before us. And, therefore, wo now incline to the opinion that all the testimony bearing upon the transactions 

before the assembling of the legislature, except as it is connected with ancl gives color to the election of Senator, except as it tends to · show that it was brought about by fraudulent and corrupt means then used., may be dismissed. A large portion of the testimony is of this character. As ·we read the record, Senator 

CLAYTOX receiYell a clear majority in each branch of the general assembly, outside 

of those claimed to be thus fraudulentl.v elected, and some of those whose elections are thus assailed voted against him, and this alone is all I hat need be stated upon 

this subject. The efforts in this direction have been most extraordinary, the statementa of numberless persons having been introduced upon the theory that, as they were friends of Senator CLAYTON, friendly to his election and exerting tilemselves in his behalf, so there was a so-called conspiracy, and what all antl 

each of said conspirators said would bind all. To admit that a conspiracy has 

been shown in any legal sense would be to set at defiance all the rules of law governing in such cases, and make every candidate, in a bitter and protracted contest of this character, responsible for all that was said and done by all his friends, the 

foolish and the discreet, the good and the bad, the honest and the dishonest, alike.· While we would do nothing to encourage fraud or to shield from responsibility any one seeking official position, and especially a position so high as a seat in this body, wo would not enter a. field of mere speculation and adopt a rule which is the most doubtful in theory and finds no support in practice or precedent. "It only remains to inquire into the alleged frauds connected with the election. 

And here the principal, if not only one, is that Senator (then Go.vernor) CLAYTON 

issued to Hon. John Edwards a certificate of election to the llouse of Representatives of the present Congress, upon a corrupt bargain or agreement that lie was to receive in return for the same the support ot the democratic members of the general assembly. If this charge is not maintained, we hazard but very little in saying 

that there is nothing left of this case. And a yery brief statement will show how 

utterly groundless it is in fact. . "With the question wl:ether Edwards was or was not in fact elected wo have 

nothing to do. He was accepted and recogniz~'>d as the democratic candidate for 

Congress, his competitor being Ron. Thomas Boles. Governor CLAYTON supported 

Boles in that election by his Yoice and influence. At one time there were two re- r.ublican candidates in the clist.rict for Congress, (Jud$. e Boles and Judge Searles.) 

:rhrough the influence of Governor CLAYTON and his uiends, Judge Searles wa.s induced to withdraw, leaving the field to Judge Boles, and this, too, notwithstanding Judge Searles was recognized as tlie more pronounced friend of tho governllr. That the object was to promote harmony and secure ultimate political success seems to be fairly well established. 

"In Pulaski County especially the republican party was diviued, one sido being the warm and devoted friends of Governor CLAYTON, the other his bitter enemies. To some extent this stat~ of things obtained in other parts of the State. At tho elec. 

tion in this county in 1870, and particularly in the city of Little Rook, it was alleged that certain frauds intervened whereby illegal votes were cast for Boles, or if the votes were not illegal they were received and counted by judges selected without 

authority of law, and that their action was both illegal anu irregular. Into all 

these matters we do not propose to enter, a-s our purpose in this connection is to state some facts generally, and then leave this part of the case. "By the statute of Arkansas it is the duty of the secretary of state, in the pres- ence of the governor, within thirty days after the time allowed for making the returns of the election, if tho returns are all received, to cast up and arrange the votes from the several connties for member of Congress; and of the governor, immediately thereafter, to issue his proclamation declaring tho :person having tho 

highest number of Yotes to be duly electecl, and he is also reqwred to grant a cer- tificate under the seal of the State to the person so elected. 

"From the returns made to the office of the secretary of state there was no question as to the result. Boles was clearly elected. The duty of the governor nuder 

the law is ministerial, not judicial. By strict law he has no power to reject votes, nor t-o direct the connting of those returned by other than the proper officers. In this case, however, it was brought to his attention that frauds had been perpetrated, or, at least, irretmlarities had intervened, which should be examiucd into. In our opinion, under the law he ltad no power to enter upon such an inquiry; nor do we understand that he did. 

"A case was pending in the supreme court of the State involving tho legality of 

the returns made from certain wards in the city of Little Rock and some precincts in the county, the determination of which was regarded important in settling whether Boles or Edwards was elected to ·congress .. The governor detenniued to wait, and did wait, that derision. The same question was brought t-o the attention 

of the legislature and referred to a committee, antl he declared his purpose to await that action. In the wards referred to two polls were opened, one by judges selected by the by-standers, the other by the judges regularly appointed or chosen. 

At the first the votes were almost unanimously for Boles, at the other very largely for Edwards. Counting the first and excluding the second, Boles was undoubt· 

edly elected; if the latter were counted and the first excluded, and excluding votes for Boles in some other places, which it was claimed were fraudulent, then it was insisted that Edwards was elected. 

''By the decision of the supreme court and the report of the committee in the 

legislature, the elections held by the regular judges were determined to be the only legal ones~ and following these decisions in part the governor gave the certificate to Edwaras. In this he may have been mistaken. But it would certainly be most extraordinary to say that the executive of a State may not follow the decision of 

its highest judicial tribunal-that he may not act upon the proceedings of the leg- islative branch. 

"As to the returns and the election, there was intense excitement. Factions were arrayed against each other, and each charging frauds without stint upon the 

other. If Governor CLAYTON mistook his duty, it was, at least, quite as much on the side of law and order as to have acted without investigation and in disregard of the action of the other co-ordinate departments of the"State government. ll it 

is said-this is the effort from the testimony-that the ju•lges and legislature were 
1873. CONGRESSIONAL RECORD. 171 

actuated by base, unworthy, and corrupt motives; that they were all moved by him antl in his intere8t, WA can only answer that a charge so seriouR is neither 

probable nor reasonable. It would certainly require the very strongest proof to justify us in believing a cbar~e so sweeping, affecting, as it would, almost tho lo· ~ality and validity or-the entu·e acts of its officers, legislative, executive, and ju- dicial. 

" But this is not all. General Edwards was given t.be certificate on tho 20th 

of Februa.ry, 1871. Governor CLAYTON was not elected until the 15th of :March. 

True, ho was elected at what is known as his first election, on the 11th of January, 1871. Bot this l:llection he declined. He holds his place now under the second 

election. At this but one democrat (and he of doubtful political statns) in the 

house Yoted for him, and he swears most positively that his vote was not infiu. 

cnootl by the Edwards matter in the least. In the senate, if any voted for him, 

he had, without counting them, a clear majority ofall, and as to those voting for him, 

if any, there is no evidence that they cared anything more for Edwards than Boles. 

" It appears, then- · " First. That CLAi'TON was the political friend of Boles and favorl:ld his election. 

"Secondly. That in issuing the certificate he discharged what seemed to be, and 

what he had good reason to believe to be, his duty, in following the decision of the 

supreme court and the action of the legislature. "Thir(Uy. Nothing approximating a corrupt motive in exercising the power to inquire into the legality of the returns is shown. 

"Fourthly. He gave Ed w:u·ds the certificate before be was elected the second time, 

aud after he had annonuced, at least, a contingent purpose of remaining in the office 

of governor. 

"I<'ifthly. There was no necessity for a bargain with the democrats in the legislature, for they were but too willing; being in the minority and without hope of being able t{) elect one of their own political friends, in view of what they considered to be their wrongs and the wrongs of their friends at tho hands of the governor, we say they were but too willing to have him elected to the Senate, and thus secure l1is resibruation as governor, trusting and believing that a change could not possi· uly be worse for them. 

''Sixthly. He did not receive any votes under any such agreement, and, least of all, 

any number sufficient to influence the result. Ancl hence we conclude that nothing oan be plainet· oi· m01·e manifest than that this charge is totally and entirely unsus- tdn~. · 

"Something is said in the testimony of Whipple about railroad subsidies and 

bonds, and tho action of Governor CLAYTON in that connection. This relates rather to his action as ~overnor, with which we have nothing to do, than to the senatorial 

election. So it IS attempted to show or start the theory that he procured the resig· nation of White as secretary of state, and appointed Johnson, the lieutenant.gov- 6l"nor, to the place made vacant by White; also the election of Hadley as president 

of tho senate-all in pursuance ot a corrupt arrangement by which he was io be 

<'lOctell to the Senate. It must be admitted that the stroke was a bold anti most snccessful one. Governor Clayton ha(l saicl to his friends, from the stump and 

elsewhere, that, while he wa-s a candidate for the Senate and was desirous of sue· cess, be would never 'take an election and leave the State administration in the 

hamls of Lieutenant Governor Johnson. He was elected Senator in January, and an effort was thou being made in the courts to remoye the lieutenant-governor. 

'.rhis was unsuccessfnl, and Governor CLAYTON declined the office of Senator. At 

the first election several of the democratic members voted for him for reasons a}. 

ready stated. A.t this time and for weeks all parties were excited; the members were leaYing the legislature to break a quorum; crimination and recrimination were the order of the day, and each party was struggling for supremacy. Everything was in di!!order and confusion. The result no man could tell. At times they were apparently on the eve of an outbreak, if not of reYolution. Then it was that 

\Vhite resigned his office of secretary of state. He was the fl"iend of Governor CLAY-

•roN, but apparently not more than of the other side-wanted to and was willing to sorve him. Jc•hnson was willina to take that place and vacate that of lieutenant 

governor, and be was accordingfy appointed. Hadley was elected presiding officer 

of t-he senate; CLAYTON was made Senator and Hadley became governor. " If in all these changes there was nothing corrupt upon the part of Governor 

CLAYTON, then they are as harmless, so far as this inve.stigation is concerned, as if 

they had occurred years before, or in another State, and without his suggestion or knowledge. The only testimony which tends to show anything of the kind is that 

of White, who swears that months afterward he received some money through Sen- ator CLAYTON, but he explains what it was for, and states positively that it was not in consideration of his vacating the office of secretary of state. 11 But, without more, we here leave the case. In our opinion the charges, if such 

they can be called, are not sustained. The testimony fails to impeach the Senator's official conduct or character. All which we shall take occasion to show by a fuller reference to the testimony and record, wh~n other duties will permit, antl it 

may be the pleasure of the Senate to receive tho same. 11 Respectfully submitted. 

"GEO. G. WRIGHT. 

"I concur in the foregoing, as touching the testimony which 'tends to impeach 

t.he official character and conduct of a member of the United States Senate,' re· serving a recuiTence to the mass of testimony when opportunity ofters for a full 

report. 

"LOT M. MORRILL." 

Refer1ing to tl1o te!ltimony of Wheeler and Whipple, they extract the following as constituting the charges (if such they can be called) upon which this investiga. 

tion was instituted: 

CERTIFICATE TO EDW AllDB. 

. Extract front the testimony of Edward Wheeler. 

"Examined by Mr. BLAIR: 

"Question. "\Vbat was the reason assigned for CLAYTON acting as he did 7 "Answer. It was generally regarded that he ex!_)ected, by supporting Edwards, ·to gain some democratic votes in the le~islature for United States Senator. 

" Question. That it was for his own rnterest, and. to secure his own election as Senator I 11 Answer. It was so understood; yes, sir. 

" Question. Tl)llt is the explanation of it 7 11 Answer. That is, the object of the frauds in Hot Springs County was t{) put 

Clayton men in the legislature; the object of the frauds in Pulaski County was to 1mt democrats in the legislature, for the Clayton faction had a very small vote in 

that county, and the democrats were given seats in the legislature. It was claimed, 

aml it has been sworn to by some prominent democrats, that General Edwards was given the certificate upon a trade made by Senator CLAYTON, that certain parties wnuld not contest certain seats in the legislature. That was the testimony de. 

Yeloped in the investigation made in the Boles and Edwards contested election 

ca.se." 

Extract from the testimony of William G. Whipple. 

"Examined by Mr. BLAIR 1 

' Question. What was the motive of the governor in giving this certificate to a na:Jn who was not elect-edT 

"Answer. Of oontse it is very hard to tell what his motive was. It is ~enerally 

1mllerstood that it was done in pursuance of a trade. .. Question. or a trade 7 

"Answer. Yes, sir 1 that is the geueralunderatanding, 11 Qno~>tion. 'Vhat wa8 the trade1 

".Answer. That t.he democratic members of tho legislature should support him for t.he Senate of the United Stntes. 11 Question. Did they do it 1 11 Answer. Yes, sir; they did. 11 Question. And the ~overuor carried out his part of the ba;.-gain 'i 11 Answer. Yes, sir; 1t seems very plain that he did that. 

"Examined by the CHAIRMAN, (Mr. Scon :) 

"Question. There was a ma.jority of republicans in the lcgislaturt> that elected G~,vernor CLAYTO~ .to the United States Senate 1 Answer. Yes, s1r. 

"Question. And when these two divisions came into conflict in regard to electing a United St.ates Senator, you say theCLAYTOY men ent~red into a corrupt combination with the democrats, by which the democrats agreed to vote for Governor CLAY-' 

TON for the Senate of the United States, in consideration of Govemor CLAYTON giv-' 

ing a certificate of election to the democratic candidate for Congress in the third 

congressional district of the State 1 . 11 Answer. That is believed by man:v persons. 

::Question. You J:tave alt·eady stateJ. that here as the general boliefin tho State 1 

Answer. Yes, str. "Question. Is that your belioH 

"Answer. Well, it is my belief that CLAY'rON maclo some trade with the demo- crats. Precisely what were the terms of the trade I would not undertake to 11:1y. 

"Question. You have alreauy put it in that form in your testimony. I want to underst.and if that is your belief1 11 .Answer. I do not think I put it in exactly that form. 

"Question. Yon stated that to be the general belief. 11 Answer. I think it is the general belief. 

" Question. Do you include yourself among those who entE>rtain that belief 7 "A.uswer. Well, I have reason to believe it, and I know of 119 reason why it is not true." 

ELECTION TO THE SENATE. 

Eztractjrom the testimony of William G. Whipple. 

"Examined by Mr. BLAIR: 

"Question. What condition of affairs in Pulaski Cormty was disclosed by the 

inYestigation, Ro far as it went 1 . " Answer. There were shown many instanel's of fraudulent registration; parties 

who were not voters were awarded certificates by the registrars: there were many cases of parties registered in the wrong ward of the city or the wrong precinct 

in the county. For instance, parties would present themselves in the Second ward to be registered, and would be registered in Big Rock Township. There were man.1 instancQs of that kind, where parties were registered in the wrong places. 

" ~uestion. In whose interest -were these frauds porpetrated 7 "Answer. In the interest of what was known as the CLAYTON party. 

"Question. For the purpose of electing men who would support him for Senator 

of the United States 1 "Answer. Yes, sir; and in many cases to clereat the repuulican candidates. 

" Question. Who would not vote for him for Senator 7 "Answer. Who would not pledge themselves to support him for the United 

State!! Senate. That was the case in Pulasl.-i County, where the ULAYTON vote was understood to have been thrown to secure the election of democratic candidates 

for the legislature as against the republican candidates, because the former were expected to support CLAYTON and the latter were not. "Qoest.ion. Did they support him i 

"Answer. They did support him; yes, sir; iliey voted for him for United States 

Senator. 11 Question. As I understaml, Governor CLAl'TOX was elected Senator, and dec lin~ 

to accept7 

"Answer. Yes, sir. 

"Question. What was his reason for declining to accept when fir8t elected 1. "Answer. What reru;on did he assign 7 

"Question. Yes. 

"Answer. The reason be assi!!Ded was that the interests of the re1mblican party in .Arkansas required that he should re•nain governor. But that was not the gen. eral understanding at all. 

"QuE>stion. 'Vhat was the general underst.andina on the subject~ 

"Answer. The general undtJrstauding was, that be declined the election to the 

United States Senate because, if he went to the Senate at that time, he could not leave the government of the State in the bands of his friends. 

''Question. Who would have been governor if he hall not, declined to go to tho 

Senate at that time 7 

"Answer. The lieutenant.governor, James M. Johnson. 

"QuP.stiou. Wasbo a friend ofCLAYTOX t ".Answer. He was not a friend of CLAYTON at that time; he was a republican. ti~~uestion. How did CLAYTON subsequently arrange that, when elected the second 

"Answer. On the eve of the secoiid election, I think the day before, Lieutenant. 

Governor Johnson resigned his office al! lieutenant-governor, aml was appointed 

secretary of state b~ Governor CLAYTON, Secretary White, U1e previous secretary, having resigned. Thereupon, Senator Hadley wa.S elected president pro ten~po1·e 

nf the senate, and became acting governor of the State upon the election of Gov. eruor CLAYTON to the United States Senate. 11 Question. He is underRtoo<l to be a friend of CLAYTON1 

''Answer. Governor Hadley~ 

"Question. Yes. 

"Answer. Yes, sir; he is understood to be a CLAY'l'ON man, out antl out. 

D<DlCTJIIDiT. 

Eztract from the testimony of Edward Wl~oeler. 

"By Mr. BI.AIR: 

"Question. Were you o. member of tho grand jury of tho United States court last spring 7 "Answur. Yes, sir; and its foreman. 

"Question. When was the session of that court held t ''.d.uswer. It commenced on the lOth of April last. 

"Question. Were any indictment-s found by that grand jury under the-act of 

Congress k-nown a-s the 'enforcement act~· 

"A. nswer. Yes, sir ; there were severnl found. 

"Question. A.gainst whom t Who were indict-ed 1 "Answer. There were six or seven different parties indicted in llot Sprin~s 

County; jud.e;es, and clerks of elections, and registrars; also some six or seveu m Clark County for J"rauds in elections; and Governor CLAYTO~, of Pulaski County, was indicted. 

"Question. What was the offense for which Governor CLAYTON wns indicted, 

and what was the evidence upon which he was indicted I 

"Answer. The evidence was entirely documentary, being the returns in tho office 

of the secretary of state. The witnesses were the ex-secrotnry of state and tho 

deputy secretary of state. They brought the returns, or a tabular statement of 

thorn sworn to, and laid it before the grand .jury. "Question. Those returns wero of what election, and in what counties 1 "Answer. In the electiou for members of the Forty.second Congress, and in U1o 

conuties composing tho third congressional district of the State of Arkansas. I 

•lo not now 1-emember all or the counties by name. It is tho district. in which tbe 
172 CONGRESSIONAL RECORD. MARCH: 24', 

county of Pnla.ski is embraced; our county is oue of the counties of the third con- gressional district. 

"Question. What was the action of Governor CLAYTON that led to his indictment¥ 

"Answer. The first,that I, or any member of the grand jury, knew of the mat- ter was the bringing of the case to our attention by the district attorney ; he came to me with a list of witnesse11, three in number, which he wished to have snbprenaed. He said the case bad been called to his notice, aud he wanted it brought before the grand jury for examination. I subpwnaed the three witnesses: the ex- secretar·y of state, the deputy secretary of state, and General Ed wards, the person to whom the certificate of election for Congress had been given by Governor CLAY· 

TON. It was claimed that Governor CLAYTOl{ had violntea certain sections of the 

enforcement act in giving the certificate of election to General Edwards, when the retorn1 aa exhibikd to ns by the secretary of state, showed tba.~ Judge Boles had 

been ruected. General Edwards presented a copy of his certificate of election, and 

of tho proclamation of the governor, stating that, according to the retnrns on file 

in the office of the Recret.ary of state, General Edwards bad been elected. But thereturns, as exhibited to us, 11howed that Judge Boles was elected by some 2,130 votes, 

I think it was, on the full vote, countin~ the ~·otas at both polls. There were allegations of fraud on both sides. But ~ivmg the governor the benefit of every doubt, 

the least m!\iorityfor Judge Boles, that we could figure out, was some eight or nine hundrert ; I forget tlie exact figures. That was according to the returns shown to us; and upon that showing the indictment was found. 

"Question. Under what part of the act was the indictment found 7 

"Answer. I think it was the twenty-second section of the enforcement act. And our State laws require tho canvass of the retnrns to be made by the governor, as- sisted by the secretary of state; the governor is made the canvassing officer. The 

law was explained to us by the district attorney, and it was claimed that the gov· ernor had violat~d ti.Je _twenty-second section, I think it was, of the enforcement 

act-the ono providing that if any officer shall issue a fraudulent certificate of election to any party, be shall be amenable, &c. 

Again: 

"Question. And the grand jury found that that was a fraudulent certificate 1 

"Answer. They found that this proclamation of the ~overnor, issuing the certificate of election to Edwards, was not in accordance With tho returns in the office 

of the secr~tar·y of state as laid before us. 

" By the CHAIRMAN: 

"Question. What was the specific offense with which the governor was charged¥ 

"Answer. I think the district attorney, who is in this city, has a copy of the in· 

dictmont, and be can probably explain these matters much better than I can." 

Again: 

" Question. The other case of indictment you have referred to is one against 

Governor Clayt.on, for giving the certificate you have read 1 "Answer. For furnishing a certificate of election to John Edwards. 

"Question. Tha State law, you say, makes the governor the canvasser of tho retumst 

"Answer. It makes it the duty of the governor, within thirty days after the 

"lection, to make a canvass of the votes, make proclamation, and issue certificates 

of election. 

" Question. In the discharge of that duty is the secretary of state associated 

with him in any capacity which woulrl invest him with authority to decide, or does the governor merely consult him! "Answer. Hill duty is merely clerical; the governor is the canvassing officer 

proper. I think the law atates that the canvass shall be made by the secretar.y of state in the presence of the governor, and the governor shall, by proclamation, announce the result. 

"Question. It makes it the duty of the governor to award the certificate to the 

persons whom he judges to be elected i 

"An11wer. Yes, sir. " Question. The 1·esponsibility of the decision is upon the governor 7 

" Answer. Entirt»ly. 

" Question. And it waa because, upon the evidence presented, you believed 

that the governor had decided wron~~:fully--

" Answer. Yes, sir, aMOrding to the returns laid before us. ::Question. You ~ound a true bill against him Y . Answer. Yes, srr. "Question. And that case is now pending for trial in the United States court' 

"Answer. Yes, sir." 

4-gain: 

" Question. You heard, of course, nothing but the evidence on the part of the 

Government ; there was no defense i 

" Answer. Of cour11e there was no defense. 

"Examined by Mr. POOL: 

"Question. You sought for n·o facts as explanatory of the governor's action 9 

"Answer. No, sir; we knew of nothing; we could get at nothing but the returns. "Question. Was any witness sworn before the grand jury other than the secre- tary of state, the-- • " Answer. The ex-secretary of state. The present secretary of state was not then in the city. He had but receutly entered upon the duties of his office, and 

his chief clerk was made deputy secretary of state, and he was before ns in regard to the records. 

"Question. In relation to the authenticity and correctness of the report¥ "Answer. Yes, sir. And General Edwards was before us as to the correctness of a copy of the CJrtificate which had been furnished us. " Question. And you examined no witnesses outside 9 

"Answer. No, sir." 

These witnesses testified more at length before the Joint select committee, 

&c.; but the foregoing, it is believed, contains all that 18 necessary to show the 

precise charges made. They may be considered under three heads, to wit, certifi· cate t.o Ed wards, election to the Senate, and corrupt bargain. Without discussing what would be the effect if any or all these charges were sustained, or the propriety or power of this body to consider the same, interesting and important thongh such a. question might be in a proper case, we proceed at once to state our views of the case, as submitted to us, without rea~ bing the inq ni- ry indicat~d. 

First, then, disregarding chronological order, we shall consider the matter of the 

indiotment. 

It appears that Senator CLAYTON was indicted for the violation of tho twenty- second section of the enforcemen1; act, in fraudulently giving the certificate of election to Ge)Jeral Edwards, when, aais claimed, it should have been given to his competitor, Judgo Boles. He was governor, and as such did give the certificate of elect.ion to General Ed wards. The language of said section, so far as here material, is, that "any offtcer of any election, at which any Representative or Delegate in the Congress of the 

United States shall be voted for * * "' * who shall * 

* * fraudulently make any false certificate of the result of such election, in re~ard to such Re~resentative or Delegat.e .* * * shall be deemed 

guilty of a crime, ' &c. By the law of Arkansaa it is provided that the secretary of state shall, in the presence of the governor, or, &c., cast up and arrange the votes of tho se\•cral corurties for persons voted for as members of Congress, and that 

the governor shall immediately th.ereafter issue his proclamation declaring the 

person having tbe highest number of votes to be duly elected, and that he sha~' !ITant him a certificate thereof under the seal of thel:itate. 

"' It seems that the secretary of state did thus cast up and arrange the votes in 

the election between Boles and Edwards. It also appears that, by the showing thus made, Boles, and not Edwards, had a majority of the votes, and was hence 

apparently entitled to the certificate. 

This canvass of the votes took place within thirty days after the election, (the 

election being on the 8th of November, 1870,) and yet proclamation was not made nor was tho certificate issued until in February 1871. 

Immediately after the election divers affidavits and some documentary evidence were presented to the governor, tending to show that in one of the counties (Pula~ki) of said congressional district, frauds ba<l intervened, which, being con-· sidered, wonld exclude a large number of votes cast for said Boles, and thus elect· Edwards. About the same time proceedings were institnt.ed in the supreme court involving the validity of said election, and t.he votes thus claimed to be fraudulent or irregular./ and they were afterward, by the judgment of said court, determined to be frauaolent and illegal. To state the claim more particularly, it was main-, tained in said affidavit and evidence, as also iri said proceedings in court, ti.Jat the 

polls in some of the wards of the city of Little Rock, (Pulaski County,) and some pre-' 

cincts in this county, were taken :J?OSsession of by force, violence, and contrar,y to~ 

law, judges of election installed Without right, and other ille~alities and irregular~ 

ities practiced, and notwithstanding the proper and lej:!;aljuages also held an elec1 

tion a'L the appointed places, the votes received at the illegal polls, and by the 

judges illegally chosen, were the votes received and canvassed. When the legis., lature met, the same questions were there made a~ to the members of tho house, and senate voted for in said localities at the san1e time, and claiming seats nnde~ 

such alleged illegal election, and it was determined adverse to their claims. Afte~; 

all this the governor issued the certificate t.o Edwards. . It is claimed by those prosecuting the charges here that, even excluding the so- called illegal returns, Boles was still elected. This we are not prepared to concede~ 

for it seems very clear that there is one method of canvassing the retm·ns, and not at all without warrant in the figures, if certain fact-s are admitted, which would 

elect Edwards. This will be seen in the following statement: By the returns from all the counties, as canvassed by the secretary of state, it 

appears that Bol~s received 10,344 votes; Edwards received 8,2ll votes. The gov~ 

ern or excluded from the count the votes cast in the First and Third wards in the 

city of Little Rock, and in certain precincts or townships in the cormty of Pulaskit 

in all of which the electiOn had been declared illegal by the legislature of which 

excluded votes there had been cast for Boles 2,385, which, being deducted from th~ above number, counted for Boles, left him 7,959, aod of which excluded votes there 

had been cast for Edwards 202, which, being deducted from the above number 

counted for him, left him 8,009; thus showing a majority for Edwards of 50 vote~· 

But conceding that Boles was actually elected and hence entitled to the certifi, 

cate, it would by no means follow that this indictment was well founded, nor that 

Senator CLAYTON was consciously and willfully violating his duty or conniving at a 

violation of the law. 

We concede that, in strict law, the functions of the governor, in· relation to th~ 

proclamation of the result and granting the certificate, were ministerial and not judicial. His duty was simply to declare the result and deliver the certificate o~ 

hill election to the party appearin~ ~o have a majority by the canvass thus made~ 

He had no power strictly to go benind the canvass and inquire into the alleg~ 

frauds ; for the returns were to all appearance le11:al and formal, anll the entlen 

aliunde was for Congress, if the question was raised of their illegality, and not fo 

the executive. But it by no means follows that he was guilty of the fraudulent ac( 

forbidden by the enforcement act, if he did go behind the retnrns. In the first place, he was not an1enable under the statute for this act, because 

in our opinion, be was not an "officer of any election" within the meaning of th~ statute. This was expressly so held by the circuit court of the United States fo 

the district of Arkansas, his honor Judge Dillon presiding-aj.uristofthe cleares 

head, the most incorru£tible integrity, and the finest legal attainments-when th 

~e:;ig~n cb::o ~~~o:o~a~i: ~u~~~ indictments, and of its correctness we thin 

But if such officer, the governor might as well in the utmost good faith, thong~ 

without strict legal warrant, e11teem it to be his duty to go behind snch returns· if it waa brought to his attention that fraud had intervened. A mere mistake ;.J to his powers and duties-the exercise of judicial instead of ministerial powerS! 

in that connection-would by no means establish the required fraudulent inten! 

And when we remember the circumstances that such frauds were brought to hi 

attention; that he supported Boles and not Edwards in that eleution; that he exerte . himself to procure the declination of a third candidate (Judge Searles) wh 

claimed to be a regular republican candidate, and whose candidacy endan.,.ere 

the election of Boles and rendered more probable that of Edwards; that 'jjole was recognized as the candidate of the party with which the governor ha.s con tinually acted, and that Edwards was the candidate of the opposition; that a~ 

least some evidence was furnished to him of the alleued frauds; that the highes judicial tribunal of the State had declared against the validity of such retwns · that the legislature had reached the same conclusion-we say, when all thea 

things are remembered, we should ba compelled to overturn all rules of eviden~ to say that, while he acted without warrant of law, he also acted fraudulently. paftY may mistake the plainest legal duty, and yet have no criminal intent. .A.n 

so we find in this case that the governor, if an offioor of election, did not ac fraudulently ; hence was not guilty of the offense chal'~ed, and that thus<far ther 

is nothing to "impeach his offi01al character or conaoct as a member of ~ 

body." 

Secondly. Alleged frauds leading to and connected with his election as &.nator\ 

We inquire, in the second place, into the charge of fraud leading to ann con, nected with his election ns Senator. · By reference to the testimony of Whipple (set out above) it will be seen that! 

this is baal:ld upon alleged fraudulent re~stration, and some supposed bargain o~ 

arrangement by which .Johnson re11iguea his office as lieutenant-governor, takin~ 

the place of White, who resigne?- as secre?try of state, Hadley becoming governo:q and CLAYTON Senator. Than this, few thmgs could be more vaguely stated, so faQ as the testimony of WPipple discloses, and yet this is all, it is believed, to be foun~ 

therein approximating· a charge in this connection. We have sought not to put to narrow a construction upon the lan~age used, nor have we been in the least in 

eliDed to limit the investigation withmlimits even so narrow as the charges here, contained onder the most liberal construction. And hence, upon the theor:y of th~ 

prosecution, that Senator CLAY'l'ON, with many others, his friends, had conspired, b; 

the use of unlawful and corrupt means, to secure his election to the Senate, muc testinwny WM received as to appointments to office, fiauring in and precedinu th 

canventions which nominated canclidates for the le~i~ature, the issuing of Statd 

bonds to railroad companies, certain influences wbicn it was claimed were brough~ 

to boar on members of the legislature looking to his election, and other like mat; i~~eJh~uC. nothing of the kind was charged or pretended in the testimony reOf course a ~ost material preliminary inquiry woul~ b~ to what extent a party thus charged 1s to be affected by the acts, conduct, admissiOns, pledge!!, or promises of his friends, and hence the theory was that there was a conspiracy for the pur4 

pose indicated, and t.bat what was said or done by one, in furtherance of the com~ 

mon purpose, was said or done by all, and that upon such hypothesis Govemm; CL~YTo.· was bound by all that was said or done by those engaged iu the common design. 

As stated in the" partial report," much of the testimony was received upon this 

theory of the prosecution, it being conceded that if the SO·callod conspiracy 
1873. CONGRESSIONAL RECORD. 173 

===================================7.================================~-

was not established, it was in every respect incompetent. Since making that 

report we have carefuJly examined the testimony, and feel bound to bold that it 

fulls far Rhort of establishing the alleged combination, and hence that a large por- tion of the testimony shonld be exclnned. We therefore report only such as we believe to be competent in this view of its scope and effect. We shall be pardoned for stating the familiar proposition, that to constitute a con piracy there must be a combination of two or more, by concerted action, to accomplish a criminal or unlawful purpose, or to accomplish a purpose not in itself 

criminal or unlawful, by unlawful or criminal means. The conspiracy is the gist 

of tho offense, and it is not necessary that any act should be done in pursuance of 

such nulawful agreement. To make the acts or declarations of another evidence 

against the party charged, the common design muRt first be established, and it will not do to connect the party charged, or bring him into the alleged conspiracy, by 

the admissions of others, without his knowledge, or without at least some recogm- tion by hlm of their right to speak for or bin a him. In this case the purpose to be accomplished was neither criminal nor unlawful. 

The parties confederated, if at all, to accomplish a proper purpose by the use of un- lawful or criminal means. And the whole of the case is, to put it m its strongest 

light against Senator CU.YTON, that he is to be bound by all that was said and done 

by his friends, and simply because tboy were such, whether at the State capit.o,l or elsewhere, in their efforts to secure his election. We do not stop to determine whether these acts were or were not illegal, whether they can or cannot in 

all respects be defended ; we only hold that there is no particle of testimony war- ranting the conclnsion that he ever combined with them to use unlawful or criminal means. And if he is to be held responsible for every indiscreet remark made by 

over-zealous friends, by every inducement, just or otherwise, held out by them to members of the legic;lature, for every appliance made use of by political and personal 

friends in the election of the members thereto, for t.he alleged combinations made in 

connection with proposed legislation, for all the alleged frauds in connect-ion with 

registration in some parts of the State, near and remote alike we say, if thia be the 

rule, few me11 would want friends in such a contest, or would be safe, however bon- est and upright theil· own conduct. 

Many things were said and done by friends of Senator CLAYTON which we might not approve. Nor would we for a moment recognize any rnle which would not exact or require the highest integrity and most honorable conduct in contests of 

this character. On the contrary, we would condemn. without reserve, every step, every word, every movement, which would seem to tend to the least fraud or cor- ruption in au election so important. .A.nd yet, in view of the duty assiged us, we ha•e nothing tu do with mere matters of personal propriety, nor are we to de- t~rmine whether all the plans, plots, and counter-plots of these opposing factions were in all respects to be justified by a code of ethics ever so desirable, and yet 

perhaps too seldom practiced. We have to do with the practical question, whether 

Senator CLAYTON was himself a party to snob fraud and corruption as inva.liclate 

his election or· impea h his official charact~r. 

In the whole mass of testimony there is but little to connect him with the vorl· ous achemes, which it is alleged were corrupt in their inception and consummation, 

touching ills election. Witnesses, it is true, did testifY aa to what others said, but 

that they spoke with the knowledge or concurrence of the party charged is left 

entirely without proof in many instancM, and when the proof is supplied, it re- lates to matters so entirely immat~rial or foreign that it is scarcely worthy a mo- ment's attention. One witness (McConnell) undertakes, we know, to bring all the matters detailed by him, or many of them, home to the Senator. But we feel 

bound to say that, in many respects, his story is improbable, and he stand.s before us in such au attitute that we are constrnined to discredit much that he says. While before us he was almost a wreck from long-continued dis11ipation, and we were compelled to put him under treatment for several days before his testimony 

ronld be completed. Add to this that several witnesses, having the means of 

knowledge, testify unhesitatingly that hi8 reputation for truth and veracity is bad, 

and it seems to us that no tribunal would be justified in condemning any one upon the mere recollection of such a witness, months after the transactions occurred. 

That which approximates nearest any improper action on the part of Senator 

CLAYTON, in this connection, relates to the steps taken to induce White to resign 

the office of secretary of.state. It will be seen that ULAYTOY was governor and 

.Johnson lieutenant-governor. When the former was first elected to the Senate, 

.Johnson was still lieutenant-governor, and would, if the governor accepted the sen- atorial position, succeed to the gubernatorial office. CLAYTON had pledged his 

friends, both beforo and after ilie m~ting of the legislature, that he would not accept the position of Senator if .Johnson were to be left aa governor. .A.t the time 

proceediniS were pending in the supreme court of t.be State to oust .Johnson, but 

the proceedings failed, and thereupon CLAYTON declined the senatorship. He still 

desired to be Se~tor, and yet determined to maintain his pledge to his frie11ds. 

After much consultation among his friends and others, an arrane;ement was effected by which White resigned . .Johnson was appointed by CLAYTO:S in his 

place as secretary of state, and then Hadley was made presiding officer of the sen· ate, and, upon CLAYTON's election again to the Senate, which followed soon after 

the above resignatiuns and appointments, he became governor. Months afterward 

White received, as we find, through Senator CLAYTON, 5,000 in money and $25,000 

in railroad l>onds. 

In the resigpations and appointment themselves there was nothing wrong. There 

is no testimony that CLAYTON made use of improper means to bring them about. 

WhiteA who is the only witness who seems to know much about it, says that he was atriend of Governor CLAYTON-was anxious for the harmony of the party-bad 

frequently expressecl bis readiness to do anything to bring about quiet and peace; that he bad for months, l>ecause of the condition of his family, expressed his intention to resign; that he had some business relations with the opposing faction, 

which was in such a situation that he knew he must suffer, if, by his resie;nation, 

.Johnson could be got out or the way; that be did thus suffer, and that this 5,000 was paid to indemnify him for this loss. He expressly denies t.bat this money or his resignation was any part of any corrupt or other improper agreement, or prior 

arrangement touching t.be senatorial electiOn. To this view of the transaction, there 

is no direct opposing testimony. Who furnished the $5,000 and the bonds is not shown, except that they were deposited by .Jackson E. Sickles t.o the credit of 

White, and the certificates of the deposit were sent to him by Senator CLAYTON. To conclude that it was paid in pursuance of a corrupt agreement, under and by 

which Governor CLAYTOY secured his elect.ion, we should have to proceed upon pre- sumption iu the face of positive statement; and this, too, without any evidence 

that the vote of any member of the legislature was influenced by it, at least tohia 

1\dvantage; and when, also, it had been demonstrated, more than once~hat he 

had at the time a clear majority of both houses of the legi11lature. what he 

wanted was not votes, for he bad them, but he wanted such a condition of things as that he could take the office and keep faith with his friends. 

By the retiring of White, .r ohnson would go to an office, more deeira.ble in tenure and emolument tl1an the one he helO, which was apparently l!ln.fficient to induce the 

step. The votes of the members of the legislature did not seem to have been 

involved in the movement, and White was content to see the matter arranged, and to retire from a position that had become irksome to him. There was no necee- sary connection between the arrangement with White and the votes of members 

ot' the legislature. In itself there was nothin~ either criminal or corrupt. Certainly there is no law, State or national, punishmg such an act. If not a part of a corrupt agreement, by which votes were obtained, or intended to be secured, we cannot see how the arrangement can be made to aft'ect his official character. Then, 

too, it mnat not bo forgotten that the conference touching White's resignation was 11ot witu CLAYTON, nor ostf'.nsibly on his account, bnt quite exclusive1y between 

IIadley and White, and that Hadley was ueeply interested on his O"W"D accoun.t in 

bringing about White's resignation, for, in that event, the chances were, if indeed 

it was not certain, that he (Hadley) would become governor, and while the monel 

passed through the hands of CLAYTON, in view of the other interests involved, we cannot say that others may not have contributed it; and, in a matter so important 

and eo vitally affecting the character and official position of a member of tbiB body, we should not indulge in mere presumptions nor upon impression condemn him. 

Without ~ving our approval to the course pursued, we find nothing in it of such a corrupt or crllilinal nature as to vitiate the election, or to warrant a disturba.nce 

of his present official pmlition. But one matter remains to be considered, and that relatell to the alleged corrupt 

bargain, by which Senator (then Governor) CLAYTON issued the certificate of election to General Edwards, in consideration of receiving vot~s for his present position in the ltJgislature of Arkansas. This charge, though the one in which this prosecution mainly originated, has less 

apparent support than either of the others. Much that baa been heretofore shid 

is applicable here. The testimony, instead of showing the corrupt bargain, abundantly establishes that the Senator, (then governor,) tliou~h acting from an incor- rect view of the law and his duty, nevertheless was carrying out what he hn.d at least fair reasons to believe the will of the people, aH expressed by their votes. He had evidence tending to show franda. He had the solemn judgment of the high- est court of hie State, and the action of the law-making power touching the very point upon which he aeemed to doubt; and be but followed such judgment and aGtion. To say that he acted corruptly or fraudulently under 11nch crrcnmstances we would have to conclude that not only he bad the fraudulent purpose, but that 

the other co-ordinate departments of the State government \9-ere corrupt or gov- erned by a like fraudulent intent. These charges, as applied to the court and the 

legishlture at least, are too grave to be believed upon this record, or in any case where the evidence is not of the most conclusive and satisfactory character. This 

conclusion shoulu not be based upon mere presumptions-upon the impression of 

witnesses-upon the understanding of parties intlnenced not a little by their political and personal feelin~s and animosities. And yet, divested of all extraneous matter, this is all there lB of this claim. 

But, goin~ one step further, the charge certainly fail& from the fact that there is not a particle of evidence that any member in either hol188 of tho legi,slature was induced to cast his vote in consideration of giving the certificate to Edwards. The 

claim is that be waR to receive the votes of democratic members in return for his 

action; and yet he received but orie vote that can. by possibility be classed among the democrats, (and even hia political status is left doubtful.) This person was a 

witness before us, and he says positively t·hat he voted for CLAYTON, but that there was no understanding or agreement that, in consitleration thereof, ()LAYTON waa to issue the cortificate to Edwards. And there is no evidence nor a Bingle circum- stance in the whole record in the least in con1lict with his statement. There is 

therefore absolutely nothing in the least supporting this charge. We are therefore brought to the conclusion, after a careful examination of all 

the facts, that there is nothing disclosed touching the char~es made, as found in 

the testimony of Wheeler and Whipple before the joint select committee, impeachil!g the official character and conduct of Senator CLAYTON. We accordingly 

recommend the adoption of the following resolution : .Resolved, That the charges made and referred to the select committee for inveaa 

tigation affecting the official character and conduct of Hon. POWELL CLAYTON are not sustained; and that the committee be discharged from their further oon- ' sideration. 

Rel!pectfully submitted. 

GEO. G. WRIGH'l'. 

L. M. MORRILL. 

Mr. WRIGHT. I understand it is the wish of the Senator from 

Georgia, who submits the minority report, [Mr. NORWOOD,] that it 

shall be read also ; but I understand his preference is that it shall 

not be read until to-morrow, and he proposes, after the minority re- port shall be read, to present his views in support of it. In view of 

the understanding we bad this morning, having no disposition to press 

this case to-day, if he shall ask that that course be taken, having con- ferred with him and understood that he so prefers, I move that the 

Senate now proceed to the consideration of executive business. 

COMMITTEE SERVICE. 

Mr. MORTON. I ask the Senator to withdraw that motion for a 

moment. There is one vacancy left on the Committee on Privileges 

and Elections, and it is important that it should be filled before tho 

Senate adjourns, and I hope it.will be. I ask ·that the Vice-President 

be authorized to make the appointment. 

The VICE-PRESIDENT. If no objection be made that order will 

be made, and the Chair will take time to fill the vacancy. 

Mr. THURMAN. Does the Senator from Iowa withdraw his motion 

for the ,motion of the Senator from Indiana! 

Mr. WRIGHT. I understood that was disposed of. 

Mr. THURMAN. Not yet. 

Mr. WRIGHT. I understood the Chair to say he would fill the 

vacancy. 

The VICE-PRESIDENT. The Senator from Indiana gave notice 

that there was a va{}ancy on the Committee on Privileges and Elections, and moved that the Chair be authorized to fill it. 

Mr. MORTON. The committee has been increased to nine, and 

there have been but eight appointments made. 

Mr. THURMAN. I was not bere when the committees were formed, 

and I do not know what was the nndersta.nding aa to who is entitled 

to this ninth member of that committee. I should like to know how 

that matter is, whether the opposition is entitled to that ninth memo~ 

ber. The opposition now baa two on that committee. Whether tht1 

opposition are entitled to that ninth member, so as to make it stand six 

to three, or not, I do not know. 

Mr. MORTON. I do not know what the understanding was about 

it. 

Mr. THURMAN. My understanding was that the minority should 

have as near as possible one-third of the committees, which would 

give us three on that committee. 

Mr. MORTON. Let it pass over until to-morrow, and we will con- sider it. 

Mr. THURMAN. Having said this, I have said all I desire to say ; 

aud if the Vice-President finds that it was the understanding that 

the opposition were to have thr~e members on that committee of nine, 

then I know very well that the Vice-President will appoint one of 
174 CONGRESSIONAL RECORD. MARCH 25, 

the opposition on that committee. I have only to say that I do not 

want to be on that committee myself. 

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

Senator from Indiana, that tho vacancy npon the Committee on Privileges and Elections be filled by the Chair. 

The motion was agreed to nem. con. 

EXECUTIVE SESSION. 

Mr. WRIGHT. I renew my motion. 

The motion was agreed to ; and the Senate proceeded to the consideration of executive business. 

After one hour and fifty-two minutes spent in executive session, the 

doors were re-opened. 

CHAnGES AGAINST SENATOR CLAYTON. 

Mr. CAMERON. Ur. President, as the doors are now open, and what 

I say will be put before the public, I desire to state that I was told 

to-day for the first time that an important witness in the ca.se of the 

Senator from Arkansas [Mr. CLAYTON] is a person called .McConnell, 

and I learned, too, that be belonged to the State which I have the 

honor in part to represont. He belongs to a very respectable family 

there, a family of great ability. Nearly all of them have great talents, but sometimes they do not use them for the best purposes, though 

most of them, I think, do. He is a native, I think, of the town of 

my colleague. nut I remember this of him, that he is perhaps the 

most unreliable man that ever was born in theStateof Pennsylvania. 

[Laughter.] We have some bad men there, but I do not think anybody quite so bad as he. 

I desire only to tell you one or two facts in regard to his conduct. 

Some years ago there was a gentleman, governor of the State of Pennsy 1 vania, who was not particularly my friend1 and if I were to mention 

his name yon would think he never was my friend, and I ought not to 

defeutl him here. nut be had, among other good qualities, the quality of 

hospitality. One evening a person came into his bouse without any invitation, and made himself exceedingly agreeable to everybody there, on the occasion of a party of_ladies and gentlemen. He made himself so agreeable that he attracted everybody's attention. After awhile, 

about the time when be ought to have gone away, he suddenly be- came very sick and asked the hospitality of the governor's family to 

remain there all night. He remained all nirrbt. The next morning 

be was still very sick, and he remained sick for four or five day~:~. In the meanwhile he atole the affections of the governor's daughter, 

and he stole out one evening and got a justice of the peace to marry 

them. Of course the governor, and especially his excellent wife, were terribly shocked thn.t a person of that kind should become a member 

of their family; but on his return, immediately after the performance 

of the ceremony, he was driven out of the house. The ~egislature met 

directly afterward. So much wounded in his feelings was the gov- ernor that he went to Cuba and remained there until the legislature 

divorced them, and this young man went out into the world again. 

After awhile I heard of him in Philadelphia, and he committed about 

the same sort of act in Philadelphia, in the house of a friend of mine. 

I therefore desire to say now, as I cannot be here to-morrow, tha.t 

I shoultl place no more reliance upon the word of that man than I 

would npon the word of a man who had been a hundred years in the 

penitentiary, for I think the fellow ought to he there at least half of 

that time. I refer you now to my colleague for something in regard 

to that person. 

Mr. THURMAN. May I ask my friend, before he takes his seat, 

whether this witness about whom he is speaking is a Pennsylvanian f 

Mr. CAMERON. I am son·y to say that he is. 

:Mr. THURMAN. It is the first unworthy Pennsylvanian I ever beard of, in the opinion of the Senator. [Laughter.] 

Mr. CAMERON. And the first I ever knew of. [Laughter.] 

Mr. ALCORN. I would ask the honorable Senator whether this 

mn.u's father was a good man 7 · Mr. CAMERON. I believe his father or his grandfather was a good man. I remember one of his uncles once voted for me when I wanted a vote very much. [Laughter.] 

:Mr. SCOTT. .Mr. President, my colleague has referred to me. I do 

not know that I can state anything corroborative of what he has all·ea.dy stated, of my personal knowledge, for his knowledge of this 

young gentleman is much more intimate than mine. He may have 

been born in the town in which I reside; I do not know whether he wns or not; bnt his ancestry did live there, and were highly respectable people. My impression is that he is a native of another county, on the western side of the .Alleghanies, Indiana County, to whioh his 

father removed. 

Mr. CAMERON. I believe my colleague is right. 

Mr. SCOTT. I have not such personal knowledge of this young man aa my colleague bas, owing to the fact that he Jived for some 

months, or years perhaps, around the city of Harrisburg h. 

Mr. CAMERON. 0, no. [Laughter.] · Mr. SCOTI. nut the reputation which my colleague has given 

him is the one which the public give. I do not know him per- sonally at all ; I do not know that I ever met him ; but I have heard 

of him frequently. His reputation is not an enviable one, no doubt 

about that. 

Mr. SHERMAN. I move that the Senate adjourn. 

The motion was agreed to; and (at four o'clock and thirty-six. minutes p.m.) the Senate adjourned to meet to-morrow at half past ten 

o'clock a.m. 

IN THE SENATE. 

TUESDAY, March 25, 1873. 

The Senate m6t at half past ten o'clock a. m. Prayer by Rev. J. P. NEWMAN, D. D. 

The journal of yesterday's proceedings was read anti approved. 

. THE CONGRESSIONAL RECORD. 

Mr. ANTHONY. Mr. President, yesterday I reported from the Committee on Printing a resolution for printing the CONGRESSIONAL 

RECORD, which was passed. I should have reported it as a resolution 

that had been passed by the Committee on Printing, and that was submitted to the Senate for the information and for the judgment of 

the Senate, so that if, informally, any Senators had objection to it, 

they might make it known. I supposed that, under the act of the last 

session of Congress, this whole subject wa-s referred to the Committee on Printing, and that the resolution of the Committee on Printing was final upon the subject, although, of course, it would be modified 

if the Senate disapproved of it in any way. Besides, I have some doubt whether, under the general law, it would be competent for the 

Senate alone to pass a resolution of that kind, which requires additional printing costing more than $500. I do not deem it necessary, 

however, t.o move to reconsider the resolution, as its adoption by the 

Senate cannot make it invalid, at any rate. If any Senator thinks 

differently, I have no objection to a motion to reconsider. 

WITHDRAWAL OF PAPERS. 

On motion of Mr. DORSEY, it was 

Ordered, That James H. Carleton have leave to withdraw from the files of the 

Senate his petition and papers. 

EMA..."\CIPATION IN PORTO RICO. 

Mr. MORTON. I move to take from the table the resolutions I submitted yesterday, in regard to the abolition of slavery by the Spanish 

republic in Porto Rico. 

The motion was agreed to ; and the Senate proceeded to consider 

the following resolutions, .submitted yesterday by Mr. MORTON: 

Resolved, That the Senate of the United States have received with joy the intcllij;ence that the republican ~o>ernment of Spain have abolished slavery in tbo 

Island of Porto Rico, and rB.lsed the colored people of that island from the condi· 

tion of slaves to the right-s and privileges of ettizens of the Spanish republic. 

RP.solved, That by th1s act the people of Spain have given new a-ssurance to the 

world that in establishing republican institutions they are actuated by a gonuine love of liberty and sincere regard for the natural rights of all men j and that it will be accepted as an omen of the power and perpetuity of the Spanisn republic. 

The resolutions were adoptetl. 

ORDER OF BUSINESS. 

The VICE-PRESIDENT. The question now before the Senate is on the resolution submitted by the Senator from Iowa [Mr. 'VRIGHT] in 

regard to the Senator from Arkansas, [1\fr. CLAYTON.] 

Mr. WRIGHT. The understanding yesterday was that the Senator 

from Georgia [l\fr. NORWOOD] would address the Senate this morning. 

He desired to do so and he expected to be present. I do not know why 

he is not here. He expected to have the views submitted by him, as a minority report, read this morning, and then to follow up the reading of his report by some remarks in support of it. I suggest that 

the clerk commence the reading of the minority report. 

Mr. ANTHONY. I have a resolution which I wish to offer. 

Mr. WRIGHT. Very well. 

AGRICULTURAL REPORT. 

Mr. ANTHONY. I offer the following resolution: 

Resolved, That twelve hundred copies of the report of the Commissioner of 

.Agriculture be printed for the uso of the Senate. 

This is the amount which the Senate has a right to order without 

the concunence of the Houso of Representatives. As no extra. copies 

have been printed, this will give Senators about ten or fifteen copies apiece of this document. 

Mr. FERRY, of Connecticut. I wish to know what we are going 

to do with them. 

Mr. ANTHONY. I think we can ~et rid of ten or fifteen apieco 

without the franking privilege. I do not care anything about it 

myself; but sorue Senators want it done. 

Mr. l<'ERRY, of :Michigan. I do not know how it is in Connecticut; 

but I know I have had repeated applications from my State for this 

document. In the western part of the country there is a great demand for this report. 

:Mr. FERRY, of Connecticut. Will they pay for it if sent to them 

at their expense' 

Mr. FERRY, ofl\fichigan. I cannot tell. That will be dec1ded by 

the trial. Let us provide for the copies and then wo car. test whether 

tho people are willing to pay for them or not. 

Mr. ANTHONY. I will relieve the Senator from Connecticut uy taking his share of the quota if he does not desire them. 

Mr. DAVIS. I hope the ortler will be made by unanimous consent. 

It can be done in that way. 

Mr. ANTHONY. It requires unanimous consent to consider it now. Mr. DAVIS. The people very generally want this report. 

Mr. CASSERLY. I hope there will be no objection to the resolution. It is only 500 worth, and my impression is that in the Stato 

of California the people will be very much disappointed if they do 

not soo this report in some way or other.