I 

1873. CONGRESSIONAL l~ECORD. 113 

\ 

ernment, and with the act of Congress, yon cannot treat the election 

of a Senator as a legislative act. 

But let me put another question to my friend. What will be do 

in those States in which every legislative act must receive the 

sanction of the governor before it takes effect¥ Must there be the 

sanction of the governor to the election of a member of the Senate • of the United States? He will say it is foolish to ask such a question, because the Constitution of the United States provides that the 

Senator shall be elected by the legislature. Yes, sir; it does so provide, and it does so provide with full knowledge of the fact that at 

the time that Constitution was adopted there was scarcely a State in 

this whole Union in which the approval of the governor was not 

necessary in order to the creation of a Jaw. The very fact that that is 

the case does most powerfully tend to show that by the word" legislature" as here used is meant that collective bodv of individuals who are members of the legislature, not the legislature in a technical sense as a law-making body. 

Mr. STOCKTON. I should like to ask the Senator from Ohio a question . .Mr. THURMAN. Certainly. 

1\fr. STOCKTON. I should like to ask him to explain the Harln.n case. I should like to hear him comment on that case in the view he 

bas j nst expressed. 

Mr. THURMAN. I think the Harlan case :1nd I think the Indiana case would strengthen what I have said. I should think it would be 

pret.ty difficult to maintain that that body which elected Fitch and 

llright was in a legal, technical sense the legislature of Indiana. It 

seems to me it would be very bard to maintain that proposition. As 

to Harlan's case, the facts are not fresh in my memory, and I beg my 

friend not to read a page from the Gwbe to tell rue what they are, but 

to read it after I am through. 

Mr. STOCKTON. I shall not read a page from the Globe, but I 

would like to exp1ain--

Mr. THURMAN. I beg the Senator not to do it. lam tired. Senators do me too much honor. They seem to think I am able to ex- plain everything, and I confess I am not. [Laughter.] I do not see very well how the Senate ever could have helcl that those Indiana, 

gentlemen were elected, except upon the theory that the legislature 

spoken of in the Constitution that elects a Senator is a body of electors 

who are members of the legislature. That was a case in which the 

senate of Indiana refused to go into joint convention, and the house 

of representatives, or rather a majority of them and a minority of 

the senate, did go into joint convention and elected Senators, and as they constituted a majority of the whole body of members of both 

houses, the Senate held the election to be good. Those are briefly the 

facts as I now remember them. 

1\Ir. STEWART. Everybody knows the decision was wrong. 

Mr. THURMAN. Everybody does I I do not know it. Tllere were wise men in Gotham at that day as well as there are now. It may be 

that all others knew it, but I was not aware of it. 

1\lr. STEW ART. Either the State or the United States prescribed 

the method, and in that case they violated both. 

Mr. THURMAN. The United States had not prescribed a method. 

Mr. STEW ART. The State had, and they violated it. 

Mr. MORTON. The State bad not, by law, but only by usage. 

Mr. THURMAN. Congress bad never prescribed any rule. 

1\Ir. STEVENSON. · Nor the State either. 

Mr. THUR~1AN. Nor the State either. 

But, 1\lr. President, it is said that expulsion is tho remedy. Now, I 

want the attention of my friend from New York, [Mr. CONKLING,] who 

put Brother NoRWOOD through the greater and lesser catechisms both. 

He says, suppose a legislature should elect a man guilty of murder to 

the Senate of the United States-that was the question of my friend 

from New York-would he hold the election void because they bad 

elected a homicide T And, assuming that that must be answered in 

the negative, then he put the question, could we not expel that mur- derer T Would we allow bim to sit here among ns Y 

Mr. CONKLING. ·My friend will allow me to say that I did not 

put that question. 

Mr. THURMAN. I thought that was the question. 

Mr. CONKLING. If I can state the question without interrupting 

the Senator, I will do so. Mr. THURMAN. I will yield,· provided the Senator will state the 

question, and not make a speech. 

Mr. CONKLING. Only the question. The Senator from Georgia. 

put to us this case: suppose a man were indicted, after his election, 

tor bribery, of which he ha-d been guilty, and were convicted, and the 

record of his conviction were sent to ns, would it not be absurd to 

hold that we must admit him and then expel him Y In answer to 

that, I said, suppose, after his choice by the legislature, he had been, 

in the same way, by the same court, convicted of perjury, arson, or murder, and the record should be sent here, would it not be equally 

:1bsurd to admit him and then expel him; and yet, could we say be was not elected 'f 

Mr. THURMAN. That was exactly as I understood it, and I was just going to try t.> convince my friend' that the two cases are not paraBel, and that it would not be equa,lly absurd. Yon might very well 

say that if a legislature saw fit to elect a pirate, or a perjurer, or the 

like, we could not say that that would avoiu the election, because we do not find anywhere iu the parliamentary law that that has avoided an election. That does not go to the election itself; it is not part of 

8 

the reB gestm of the election. But now I put it to my friend if it 

would not look a little odd for us, (supposing the proof to be before us, when a m!i'n presents his credentials, that he obtained his 

seat by buying the legislature, by bribery-no question about the 

number: he bought enough, bought them all-and we have the un- disputed facts before us, would it not look a little strange for us) to 

pass at twelve o'clock in the day a resolution that the election·was 

valid, and that he be sworn in as a Senator, and at half past twelve 

o'clock expel him upon the ground that he had <lbtained his election by 

the very bribery of which the Senate had ample proof when, half an hour before, it permitted him to be sworn in 'i First, bold the election to be valid, notwithstanding the bribery, and, in the next breath, 

say although he ma,y be sworn in, he shall be instantly expelled be- cause of that bribery I It does seem to me that that would present a very odd state of case, and yet, if the Senate shall decide that bribery 

does not go to the election, we will be necessarily clriven to that au- surdity. I think it would require a good deal more metaphysics than common people possess to understand such a decision as that. I ca,n 

understand why men who want to buy seats in this body may like a doctrine like that, which puts them under the protection of the 

rule requiring a two-thirds vote to expel; but why anybody who reasons simply according to logic and truth can find it consistent to 

declare in one breath that the election is perfectly valid, and in the 

next breath declare that, on account of the very l'e& gestm of that 

valid election, we should expel the man whom yon have sworn in ten 

minutes before, I confess I cannot so easily understand. I can, indeed, 

comprehend it, but I cannot appreciate it. 

Mr. President, I have occupied far more time than I expected, and 

far more than I should have done but for these pleasant little questions and interruptions that have taken place, and which so enliven a dull speech that I am always happy to be interrupted in order that 

I may not wear out the patience of the Senate. Having stated all 

that I deem it necessary to say in vindication of the vote that I shall 

give in favor of the resolution reported by the committee, I loave the 

subject. 

1\Ir. CONKLING obtained the floor: 

l\fr. CARPENTER. Will my friend give way to a motion to proceed 

to the consideration of executive business 'l 

1\!r. CONKLING. Yes, sir. 

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

The motion was agreed to. 

CO~Tl'EE ON TRA..."\SPORT.A.TIO~ ROUTES. 

1\Ir. WINDOM. While the doors are being closed, I ask leave to 

offer a resolution, to be printed and laid on the table : 

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

be authorized to sit at such places as they may designate during the recess, and to investigate and report upon the subject of transport.'l.tion between the interior 

and the sea-board; that they h:tve power to employ a clerk and stenographer, and to send for persons and papers ; and that the expenses attending such investiga- tion ue paid out of the contingent fund of the Senate upon vouchers approved by 

the chairman of said committee. 

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

PAPERS WITHDRAWN. 

On motion of Mr. CLAYTON, it was 

Ordered, That .Tohn L. Buck have leave to withdraw his petition and papers 

from the :files of the Senate. 

On motion of Mr. CONOVER, it was 

Ordered, That Commodore Edward Middleton have leave to withdraw his peti· 

tion and papers from the files of the Senate. 

EXECUTIVE SESSION. 

The Senate thereupon proceeded to the consideration of executive 

business. 

After thirty-eight minutes spent in executive session, the doors were re-opened; and (at four o'clock p.m.) the Senate adjonrnecl. 

IN THE SENA.TE. 

WED~TESD.A.Y, March 19, 1873. 

Prayer by Rev. J. P. NEWMAN, D. D. 

'!'he journal of yesterday's proceedings was read and approved. 

;PROGRESS OF BUSThTESS. 

1\-Ir. WRIGHT. 1\fr. President, I desire to call up this morning, for 

consideration, the resolution offered day before yesterday by me, on the subject ofrules. 

The VICE-PRESIDENT. The question is on takfug up the resolution indicated by the Senator from Iowa. 

1\fr. DAVIS. What resolution is it f Let it be read for information. 

The VICE-PRESIDENT. It is a resolution offered by the Senator 

from Iowa, giving certain instructions to the Committee on Rules. 

1\Ir. DAVIS. I suggest to the Senator not to call up that resolution until the Senate is fuller than it is now. It is an important reso- lution, and I suggest to the Senator from Iowa. to call it up some time 

later in the morning, or to give notice that he will move to take it np 

at a certain time. 

• 
114 CONGRESSIONAL RECORD. MARCH 19, 

Mr. WRIGHT. If there is any objection to taking up the resolution at this time I shall not press it ; but I supposed there would be no objection, as it is a mere resolution of inquiry .• I do not propose . to discuss it at all. 

The VICE-PRESIDENT. The question is on taking up for consideration the resolution offered by the Senator from Iowa. 

Mf. FENTON. Before the question is put, I should be glad to have 

the resolution read. 

The VICE-PRESIDENT. The reading of tho resolution is called 

for, and it will be reported. 

The chief clerk read the resolution, as follows: 

.Resolved, That the Committee on the Revision of the Rules be instructed to inquire into the propriety of so amending the rules as to provideFirst. That debate shall be confined and be relevant to the subject-matter before 

the Senate. 

Second. That the previous question may be demanded either by a majority vote, or in some modified form. 

Third. For taking up bills in their regular order on the calendar; for their disposition in such order; prohibitinl! special orders, and requiring that bills not finally 

disposed of when thus called shall go to the foot of the calendar, unless othorwise 

directed. 

Mr. THURl'UN. 1\Ir. President, I hope that resolution will not be 

taken up now. It ought not to be pressed in so thin a Senate as this. 

I know the Senator from Iowa says it is simply a resolution of inquiry; 

but it is a resolution to inquire about what the Senate itself knows 

just as much as any committee can know. It is an inquiry about 

matters entirely withiuourownknowledge. The only duty a committee 

could have would be to tell us what we .Irnow ourselves, and perhaps 

to draw some rule according to its own notions. I do not see that it 

alters the case in the least that this is a resolution of inquiry. 

I hope it will not be taken up for another reason. It must necessa- rily give rise to a long discussion; it cannot be otherwise. It cannot 

be that the whole practice of the Senate, from the foundation of the 

Government to this day, is to be overturned without due consideration. For instance, if I am in order in speaking about the resolution 

itself, here is a proposition that debate is to be confined to remarks 

that are germane to the subject under consideration. Why, sir, it was decided more tha-n sixty years ago that the Senate would not trust its 

Presiding Officer with the decision of the question whether a Senator's 

remarks were germane; and for this very plain rea-son, that the Presiding Officer of this body is not chosen by the Senate; he is chosen by the 

people, wholly independent of the Senate, under no control of the Senate whatsoever; and to give to an officer chosen in that way the right to 

decide whether a Senator's remarks are germane to the subject or not, 

to give him a control over the debates of this body, would be utterly 

indefensible. But I do not want to go into the merits of this resolution unless it is taken up. I hope that it will not be taken up now, 

but that we shall proceed with the matter that is properly under con- sideration before the Senate. 

Mr. WRIGHT. I must confess my utter surprise that there should 

bo any objection to the passage of this resolution. The Senator from 

Ohio says that the Senate understands this question just as well as a committee does. The same thing might be said of every resolution 

of inquiry that is introduced here, ancl the consequence would ue that you never would get any matter to a committee for inquiry and 

report to this body. 

I think that the fair way to dispose of this question is, that you 

shall get it to a committee, let them examine it, and it may be that 

they will not report in favor of a single proposition that I propose in 

this resolution. My object is simply to get it to a committee for inquiry; let them report it here, and then we can discuss it if discussion becomes necessary. How else can we get the question before 

the Senate legitimately, except through a committee Y 

I know the questions that are involved in this resolution ha-ve been 

spoken of frequently in the session just closed, and indeed ever since 

I have had the honor of a seat in this body: whether it were better 

that debate should be confined to the subject-matter before the Senate; whether it were better that we have a previous question in some form ; whether it were better that we take up the calendar in its order 

and dispose of the cases upon the calendar, or to have special orders 

made from time to time and have all the unseemly scones thc.Lt we have in this body in reference to 1ihe taking up of bills out of order, 

and the constant struggle that we have on this floor for precedence 

in the hearing of bills. My object simply is that we shall have these 

matters reported on from a committee for the purpose of expediting 

the business of the Senate. If, when the committee come to investigate these matters, they find it better to adhere to the rules as they 

stand now, then well enough. If they deem it advisable to report some amendments on these subjects, then we can discuss those amendments and consider what is best to be done. But I confess I do not see how we are to get these matters legitimately before the Senate 

unless through a committee. As I have already said, in answer to 

the suggestion that the Senate understands this question as well as any committee, the same objection might be made to every proposition to refer any question in this body. 

Now, Mr. President, I am not solicitous about having this resolution pressed at this time. It occurs to me, however, that the Senate 

is about as full now as we can expect to have it during the morning 

hour at any time. If it be deemed batter to pass it over for a few 

moments, until more of the Senators come in, I shall have no objection. 

Mr. DAVIS. Allow me to ask the Senator a question. Wbcn does 

he expect this report f At this session . 

Mr. WRIGHT. Whenever the committee get ready. I understand 

that if this matter is referred to the committee, they can report at 

the next session, the subject being before them, without are-refer- ence at the next session. They will have the matter in the mean time in their hands, and they can investigate, consider, and deliberate 

upon it during the va.cation. 

Mr. DAVIS. I suggest to my friend if it would not be better to wait • until the next session before he presses it. We cannot be expected 

to stay here now for a report at this session, and it will involve a long 

discussion. When we come here next winter it will be time enough 

to consider it. 

Mr. ~RIGHT. Most certainly I do not expect any long discussion 

upon th1s resolution. I confess I cannot understand the eensiti veness upon this subject, nor the objection to a mere reference of a resolution. 

I think it but fair that this resolution should be taken up. I think it 

will not be objeoted now that the Senate is not sufficiently full. I 

certainly can see no reason for delaying action on the resolution. 

It is said in answer to one proposition contained in this resolution 

that the policy and practice of the Senate have been, for sixty years, so and so. A great many things are quite as old as the matter to 

which Senators have referred that were better changed. If by our practice and experience here we do not improve, we live to but little 

purpose. I think all experience shows that, in many respects, we n;tight change our rules, and every day but confirms me in that expe- nence. 

Mr. SHERMAN. I am sorry that my colleague objects to the refer- ence of this resolution. I was in hopes that the Senate would, by 

unanimous consent, take up the resolution and then refer it without 

instructions to the Committee on Rules. That we must chan(J'e our rules is to me a matter of clear necessity. All I desire is simply to 

give the Committee on Rules jurisdiction of the subject-matter, not 

to debat.e at this session what ought to be the changes of the rules. 

I do not think we are prepared to prolong this session to debate what 

rules ought to be adopted at the next session, but I think it a wise 

thing to give the Committee on Rules jurisdiction of the subject, so that they may consider during the recess, and report to us early in 

the next session, such rules as may expedite the public business. 

Now, sir, I am reasonably tenacious of old things, but I am not 

tenacious of a rule, or a privilege, or a power that enables a single man to obstruct the order of business, to prolong discussion unrea- sonably, and especially to talk about the man in the moon when the 

immediate business of our constituents is involved. The practice that 

has grown up in the Senate of engaging in desultory debate about 

everything in the world, when we have a specific proposition before us, is an abuse that ought to be corrected ; and I think the best way 

to do it is to take up this resolution and refer it without debate to tho 

Committee on Rules, and let them examine the subject and report at 

the next session of Congresl!. It is manifest that they ought not to 

report at this session, because it would protract the session longer than probably we should be willing to remain here; but let us direct 

the attention of the Committee on Rules, which is fairly constituted 

of old and experienced members, to the subject-matter, and let them 

report at the next session such modifications of our rules as, without 

creating any great changes, will enable us to transact in order the 

public business. I shall therefore vote to take up this resolution, and 

will then, if no one else does, move to refer it, without instructions or directions, to the Committee on Rules, merely to give them jurisdiction of the subject-matter. 

Mr. BAYARD. 1\Ir. President, I look with great disfavor upon this 

proposition; nor do I know of any justification for the charge that 

the public business has been obstructed by the forms of debate in 

this body. I do not mean to say that members may not at times 

have grown impatient, especially those whose pow~r was assured, 

and who were therefore eager for the victory which was sure to come to them by force of numbers. As to the obstruction of public business, as I say, I know of none. I can think of no instance of it. Will 

it not be time enough to make this change in the rules of our debate 

when experience has shown the necessity for it Y" 

Free speech is what was intended to be secured by the rules, as we now have them. Free speech is what we have had under them, and 

without meaning to make an issue of fact with the lwnorable Senator who has just taken his seat, or with any other Senator on this 

floor, I must declare that in my experience in this body I have known no abuse of the privilege of debate. On the contrary, I have knowu 

great advantage to come from it. The majority have it in their 

power to enact measures into laws. Leave, then, at least, to tho~:~ e 

who oppose you, the privilege of protest and the privilege of giving 

the reasons for their protest. "Strike, but hear;" and do not hasten so to strike without hearing. 

I shall at all stages oppose any proposition that undertakes to limit 

debate beyond the just discretion of members here. There is a personal responsibility of men to their. country and their constituency on this subject which ought to be sufficient, which, in the past, has 

proved sufficient, to protect the country. As I have said, !look with 

great disfavor upon the propo&ition of introducing any gag-law into 

the rule of debate in this body. There surely is no necessity for it 

upon the ground of public business, and no mere expediency will 

justify it. Gentlemen may be a little fatigued sometimes at hearing 

views opposed to their own in this chamber, but they should recol-. 

lect that, after all, it is a poor privilege for men to speak when defeat 

certainly awaits them at the end of the debate .. Tho minority know 
. 

1873. CONGRESSIONALrf_ RECORD. 115 

that fact; and so long as it is possible to appeal to the rea-son, and 

by argument to produce a change in votes, the time is well spent, and 

I trust it will not be the disposition of the Senate to shorten it. It will 

be time enough to set on foot these rigorous measures when an abu 3 

has occurred. I do not admit that it bas occurred yet; I do not think • it can be justly said to have occurred yet; and I therefore hope the 

Senate will indicate their unwillingness to take the first step, even, 

for referring for information a resolution of this charact er to a committee. · 1t1r. CARPENTER. Mr. President, I entirely concur with the Sen- ator from Delaware who has just taken his seat. There ought to 

be one place in this Government where there can be, not only free 

debate, but full debates. There is another body of very honorable 

meu, to which I cannot refer, but of which I have heard more or less, 

of whose doino-s I have seen some things, where a previous question 

obtains, and t certainly shall never vote nor give the slightest en- couragement by any vote of mine to establish a previous question 

here. 

When has this privilege of debate ever been abused' In the four 

years I have been here, never within my knowledge. On two or three 

exciting occasions we have "sat it out,'' as the phra-se is; we have 

spent the night. Is it not far better for Senators to take that inconvenience once or twice in the course of a se-ssion than it is to establish a binding rule here, which substantially stops debate? In my 

judgment no time will be saved by it. A man is making a speech. 

Some one gets up and calls him to order, because he is wandering 

from the point. It is a very nice question to determine, until a man ha-s got through, whether he has been wandering from the point or not. There is a groat deal of collateral learning that may be at the 

end of a speech brought in and tacked on to the subject, which seems while it is progressing to be entirely irrelevant. Some man thinks 

the speaker has got over the line; he gets up and calls him to order; 

the Chair sustains the point of order; he appeals, and then w~ go off 

into a debate on the point of order, as to whether the man speaking 

is inside the rule or outside. In my judgment any attempt to establish such a rule here would waste the time of the Senate, for it cannot 

be expected that Senators who desire to discuss a measure, and who 

think they are within the rule, if they should be called to order, and 

ruled by the Chair to be out of order on that subject, woultl submit 

to it without a pretty full discussion. When you get to the question of the appeal from the decision of the point of order, then you are certain to hear the man say what he de-sired to say, for the purpose 

of showing that his speech was in order, and that would bring you 

right back where you were before, except that you would have had 

the row and ill-feeling that result from a point of order sustained 

and an appeal taken to the Senate. • My friend from New York [lli. Co~G] suggests that a row is 

always in order. I think it is. It tends to purify the atmosphere. I am for a row myself; but at the same time I prefer to have it out of 

the regular course of business rather than in it. 

AB the rule of free debate, in my judgment, since I have been here, 

which is a. very short time, of course, has never been abused, I take it 

it never was before, or it would have been changed. I certainly shall 

not vote for a change, and I shall vote every time I can get a chance 

not to change it. 

Mr. CASSERLY. Mr. President, I am in favor of a reference to 

the Committee on Rules with respect to the third division of this reso- lution. I agree that there should be some rule as to the orderly and 

convenient taking up of bills. The effort and contest frequently re- quired here to enable a Senator to get the floor to call up a bill are such as ought to be remedied, if possible. This difficulty with a diffident person almost disables him from properly attending to the 

most necessary business committed to his care. We should have a rule by which every Senator should have his day, as of right, iu getting a. bill in his charge before the Senate. Hence, if this r esolution 

shall be amended, as I shall ask the Senate to amend it, by striking 

out the first and second divisions, I should have no objection to it. 

But, Mr. President, for one, I am not willing to leave to any com- mittee the right to report, or even to consider, whether we shall 

have a previous question in this body or not. Of this I will speak 

again presently. 

That debate should be confined to the subject-matter b efore the 

Senate I agree is desirable; yet, I say no rule is required on the subject. In my time here, more than four years, I call to mind but a single case where, by a deliberate act of a Senator, there was a dis- cussion of a.n important subject entirely foreign to the question then 

before the Senate. I am reminded there was one other case of the same kind. It was where a Senator, about to leave this body, and 

unable to obtain any other opportunity to express his views on a subin a single session of this body than has been consumed in my four 

years by all the irrelevant speeches and remarks I have heard here: 

Who is to judge of what is irrelevant T Some minds in debate operate 

in one way, some in another. One of the ablest men I ever knew 

among the many able men at the bar of San Francisco, a lawyer from 

Indiana, Mr. Lockwood, now dead, had a mind of that capacity th'at he 

approached his subject from its extremest verge, sweeping toward it in 

great circles, like the condor of the Andes, still contracting them as he 

moved, until with one swift swoop he rushed straight in triumph 

at his point. I have myself sat listening to him when I could not see what his argument had to do with his case, how the splendid 

march of his concentric circles was ever to reach the point ; but 

he never failed to make it plain enough before I beard him out. 

Now, sir, Senators may discuss que-stions in the same way, and the 

great que-stions often before us are of that character that they may 

well be so discussed. Is such discussion to be ruled out of order, as irrelevant, because of the various mental vision of Senators Y 

The proposition for a previous question is still more objectionable. 

Such a rule is simply a power in the majority for the suppression of debate. To such a rule I never can consent. The Senate of the United 

States, at least, should have an unlimited freedom of debate. How 

wretched is the condition of a minority which has not the poor privilege of making its complaints to the country! I do not think, sir, 

the experience we have had of the workings of the previous question in the legislative history of this country is calculated to induce us to adopt it here. Why, sir, it is the destruction of all true parliamentary discussion. If it be true-though it is not I who say so-that 

parliamentary oratory in its best sense has almost disappeared from one House of Congress, as is said by many of our best thinkers on the 

subject, it is owing undoubtedly more tQ the previous question, with 

its natural ally, the one-hour rule, than to any other one cause. Such 

are my convictions on this part of the subject that I, for one, will never so much as votb to take up a resolution which implies that the 

previous question in the Senate is even open to consideration. 

I do not wish to occupy time in discussing this motion to take up. 

My own judgment is that, instead of bringing forward matters now that can better be deferred or wholly omitted, we ought to confine 

ourselves to the special business which has kept us here thus far, and 

dispose of that, so that we may adjourn. In any view, the first and 

second divisions of this resolution should be struck out, and I now move to amend it by striking them out. . The VICE-PRESIDENT. The Chair would suggest to the Senator 

that the question is on taking up the resolution for consideration. _ Mr. CASSERLY. I am happy to be corrected. I am opposed to 

taking it up, because I am not willing to vote that the Senate will 

consider or refor to a committee the possibility of the previous question. 

Mr. THURMAN. Ur. President, I wish to say a few words more. The Senator from Iowa says that if this resolution is not referred to a committee, it is of no use to refer any resolution to a committee. I do 

not see the force of that reasoning at all. We can refer an inquiry to a committee very properly where we are not ourselves possessed of 

the facts. We can refer to a committee a question of law which we have not had time to investigate~ that is all right enough; but in respect to the subject-matter of this resolution, no committee can enlighten the Senate at all. Let us see what it is: 

That the Committee on the Revision of the-Rules be instructed to inquire into 

the proprioty of so amending the rules as to provide- First. That do bate shall be confined and be relevant to the subject-matter before 

the Senate. 

Pray, what light can the committee give us·by any inquiry it may 

make on th~t subject f Every Senator must act upon his own knowledge. The committee will not go outside of the Senate to furnish any 

fact whatsoever. It can only refer to the experience of the Senators 

themselves; so that it can shed not one particle of light upon the 

pathway of duty of the Senate in this particular. 

Then what is the next f 

Second. That. the previous question may be demanded either by a majority vote, or in some modified form. 

They are to inquire into the propriety of a previous question. Wbat 

light can they give us on this subject that we do not possess already T 

None whatsoever, absolutely none. What, then, is the necessity of making any such reference at all f 

Thou comes the third division: 

Third. For taking up bills in their regular order on the calendar; for their dis· 

position in such ordrr; prohibiting special orders; and re9-uiring that bills not finally disposed of when tlms called shall go to the foot of the Calendar, unless 

otherwise directen. 

ject which the Senate ha-d charged him and others with in committee, There is nothing that any committee can report to us on that sub- was compelled to avail himself of that mode of addressing the Sen- ject that we do not know already. No light can be thrown on that 

ate. Thus there were two cases in more than four years, one of them question by the report of a committee. All that a committee could 

a case of absolut-e necessity, where the subject, the Louisiana case, do, if this resolution should be referred to it, would be to report 

was one of the utmost gravity; while the other and the earlier case against altering the rules, or, if it were in favor of altering the rules, was one of great gravity, in which a good many Senators were very then to report some new rule. 

desirous of hearing the Senator who spoke. Now, if the Sen~ttor from Iowa wants the rules altered, why does he 

The Senator from Wisconsin [Mr. CARPE~TER] never was more cor- not proceed in the usual way¥ \Vhy does he not introduce a new 1·cct than when h e said just now that the contests certain constantly rule, and let it be referred to the Committee on Rules, as has been t o arise upon points of order made with respect to the real or supposed done again and again, and I believe in almost every instance in which 

irrelevancy of a speaker, woulu consume more time than the speech the rules have been changed 'f He cannot be prevented from introif it went on. Y cs, sir; they would consume a great deal more time :1 ducing such a resolution, altering the rules, and that must go to the 
. 

116 CONGRESSIONAL RECORD. MARCH 19, 

Committee on Rules, according to the practice of the Senate. He 

cannot be prevented from introducing such a resolution; and if he 

thinks there is a necessity for changing the rules, there is no reason whatsoever for referring this resolution to the committee. He could 

introduce his resolution to change the rule, or introduce some new rule, such as he supposes ought to exist, and then we should know 

what kind of thing it is he a~;ks the Senate to adopt. 

But, Mr. President, upon the general question, like the Senators 

who have spoken against taking up this resolution, I am opposed to 

any such rule as is provided for in the first and second clauses of this 

resolution, and for the present I do not see the necessity of such a rule aa is provided for in the third clause. I say that this eenate haa 

always transacted the most business, and transacted it in the best 

manner, when it had the fewest rules, and I say that the court that ha~ the fewest rules always transacts the most business and transacts 

it in the most satisfactory manner; and I repeat what has been said 

by my brethren here, that there has been no culpable waste of time in 

debate in the Senate. 

Why, Mr. President, let me say that this matter goes still further. 

The moment you adopt a previous question in the Senate-the moment 

you confine aud limit debate aa the first clause of this resolution doesfrom that moment the weight and power and influence of the Senate 

in this country wi11 begin to decline. Sir, there waa a time when the 

House of Representatives waa the great power in this Government. 

Then the Senate sat with closed doors, and no word of its debates went 

to the country; but from the moment the Senate opened its doors and 

debated in public, the influence of the Senate began to increase, until 

its relative influence in the country became greater than that of the 

House of Representatives. But, sir, it would not have become greater 

than that of the House of Representatives, even with open debate, 

had it not been for the hour-rule which was adopted in the House of 

Representatives, and its previous question. That is the truth about 

it, and long-sighted men in that House saw it and predicted, when 

the hour-rule waa adopted, that that was signing the death-warrant 

of the influence of the House of Representatives in this country; and 

it haa proved to be true. 

Sir, begin this in the Senate, curtail debate here in some impatient 

haste of a majority that cannot bear to hear even discussion of q nes- t ions, in that spirit of despotism that would stop all debate whatsoever, in that spirit that says that deliberative bodies in which public meaaures are discussed are a nuisance, and that it is best to have no . discussion at all-let this first step be taken, and from tbat very day 

the decline of the influence of the Senate in this country will begin. 

Mr. President, there is no necessity whatever for this measure. I can speak for my friends on this side of the chamber. I can appeal 

to the record. Who have been here in greater proportion to their 

numbers, during the long and tedious and weary nights of the session 

that we often have, when there is no speaking against time, when 

there is no disposition whatever to waste time, but when we are compelled to sit here in order to discharge our public duties and do 

the public business Y Look at your journals and see what party in 

this body is here in the greatest proportion of its numbers. I venture 

to say that, for the four years I have had a seat in this chamber, the 

democratic party has been the party that made a quorum in the Senate nine times out of ten. So far from stopping public business, so far from factious opposition to public business, the few democrats in 

this chamber, only ten of us when I took my seat here, have sat here 

night after night to make a quorum, when more than half of the re- publican Senators were out of their seats or in their beds. 

No, sir~ there has been no disposition to make factious opposition. 

I recollect three great occasions, in the four years I have. been in the 

Senate, when the minority have made the majority sit a bill out all 

night long; but those were under circumstances that would justify 

any minority in taking that course in order that they might make the 

passage of tho~e meaaures a thing of mark and of note, that the attention of the country might be called to them. There has been no such abuse aa is here complained of. Sir, the fewer rules you have, 

ancl the more you trust to the honor of Senators, to their chara-eter, 

their reputation, their responsibility a~ gentlemen and as Senators, 

the more pleasantly and the more readily will you get through with 

the public business. 

Mr. WRIGHT. If this debate has Batisfied me of anything, it is as to the propriety of making the reference I ask. The simple proposition now before the bo9y is, will you take up this resolution Y And 

yet, in the face of the rules of this body, Senators have occupied time 

here in discussing the merits of the questions that are involved in the 

resolution itself. I say "in the fa-ce of the rules of this body;" and 

the necessity of having some rule by which we may be enable<l torestrain debate, at least within the rules, is apparent from what has already occurred here. 

Again, I confess my surprise that for the first time in my experience 

in this body, on a resolution of simple inquiry and a question of its 

reference to a committee, not to report at this session but to report 

at the next session, instantly the whole merits of matters that may come before the committee are brought before this body for dit:~cossion. 

Frequently we know it occurs here that we offer a resolution of inquiry for the very reason that we are not prepared to discuss the 

merits of the question, and it is accorded to the Senator who offers 

the resolution that the reference may be made and the inquiry had, 

for the reason that he is not then prepared to discuss the question, 

that it may go before a committee, the committee make its report, 

and he then be heard. I undertake to say it has not occurred here~ for two years that any Senator has offered a resolution of inquiry and 

it baa been denied to him before. I say it is unfair that Senators shall 

discuss the merits of this question when I have offered a simple reso- lution of inquiry and ask that it go to a committee. 

My distinguished friend from Ohio asks, why not offer a rule and 

have it referred 7 For the very reaaon that you would do just aa you are doing now, insist that the Senate understands that question just a-s well before a reference as it would after a reference, and that therefore it ought not to be referred. If I had offered rules herein the spirit of 

the resolution I propose to refer t.o this committee, the Senator would 

have risen in his place and said, "We understand this question just as well now as we can after it comes from the committee, and why let this 

resolution go to the commit tee Y" I think the fair, reasonable, and j nst 

way is that you shall refer those questions to a committee; let them 

consider them and bring them before the Senate, and then we shall 

discuss them if discussion becomes necessary. 

I am not here to say whether debate has been improperly prolonged or not upon questions in this body. I am not prepared to gainsay the 

truth of what Senators have stated here. I know, however, if you 

take that grand jury who 0'0 to make up the people of this nation, 

they will differ very widely from Sen a tors ou this floor as to the range 

of debate here. I remember less than a month since, when we had 

the question of enlarging the endowments to agricultural colleges 

before us, for three days upon that bill we discussed the Louisiana 

question; and so it baa occurred from time to time here in this chamber. 

I say I do not enter into the question of the propriety of changing 

the rules in the direction I have indicated, nor is it necessary that I 

should do so. I do not know what the committee may report ; I do 

not know, when they have reported, what I shall do upon the question; but I say it is bot fair to me, it is but fair to the Senate, it is 

but fair to the sentiments which have been expressed here, that the 

question should go to the committee at ]east, and they consider what 

it were better to do, and when their report comes in, Senators can dis- cuss the question as much as they please, and we shall arrive at aeon- elusion, I doubt not, that will be just and right. 

But I have yet to find in my experience in this body that when a simple resolution of inquiry is offered, that binds no one, concludes 

nothing, when we are seeking for light from a properly constituted 

committee of this body, objections have been made to such a refer- ence. All I ask is that this resolution be taken up and referred. 

That there are some matters in this resolution that Htrike Senators 

properly, no one pretends to deny. ·whether I shall be in favor of 

the previous question, whether the Sena.tor from Ohio shall be in 

favor of it, when the committee shall report it in some modified form, we cannot undertake to say now. It may be that it may be reported 

back in such a way that we could all agree upon it. It may be that 

the committee may report that it is not better to confine debate at 

all. Whatever their report is, we can consider it when it comes in. 

All I ask is, in fairness and in justice, that this resolution may be 

taken up and the reference made and time given to this committee 

to investigate, and when the report comes in we can consider it. 

Mr. STEW ART. I hope that this resolution will be referred to the 

Committee on Rules, and that the subject will be carefully examined. 

I do not know that we can so amend the rules as to avoid difficulties 

which now exist in the transaction of business; but it is manifest 

that there are serious difficulties, that important measures frequently are not considered for want of opportunity to get them before tho 

body, measures to which there is no real objection. 'Ve have tried a mle whielh allowed one objection to carry a bill over, and under that 

rule objections were made frequently before the bill was read, before 

there was any consideration of it. Somebody wants to take up some other bill, and he objects merely because he wants the time for some other purpose, and will not allow any explanation as to its merits. 

I do not like the rule known as the A...~THONY rule, and shall never vote for it again, because I have seen a great deal of difficulty in its 

administration. 

Then it is manifest that at the close of a session we do a great deal 

of business hurriedly, without time to properly consider it. The legislation of the last few days of the Jast session, if you will look it over now, will show clearly that we ought to have had more time to 

digest it. For instance, in the salary bill the President's salary is 

twice provided for. Would that have been done if we had bad sufficient time to consider it' And in the case of a large number of officers, there are provisions for double salaries in yon.~:. salary bill. 

Mr. THURMAN. That was simply to make it sure. [Laughter.] 

:Mr. STEWART. It shows that there was not sufficient time giveu 

to consider the subject properly. 

Mr. CASSERLY. If the Senator from Nevada will allow me, probably that may have been done with this intention-to give a choice, so that they might take the low salary if they felt so inclined. 

[Laughter.] · Mr. STEW ART. It shows the hurried manner in which business is 

transacted near the end of the session. There ought to be some means devised whereby important legislation could be terminated 

before the last moments of the session. I hope this resolution will be 

referred to the Committee on Rules, and that they will consider the 

subject and see if there is not some way of giving all important legislation a fair opportunity to be considered, so that we may transact our business in· some order. I think we do spend time in discussing 
l 

1873. CONGRESSIONAL RECORD. 117 

irrelevant questions which would be better devoted to the matters 

rea.lly under considerat~on. 

I differ entirely with those who say that the debates in the House 

of Representatives are less pointed in consequence of the previous 

question. I think if you take up the Congressional Globe, and look 

at theindex,youcan find the subject-matter in the speeches there more readily than yon can in the Senate. If you undertake to find the 

matter discussed in the Senate, when yon look at the bill under con- sideration, and then attempt to trace it up, you will find the discussion was on some other subject altogether. The debates in the House 

of Representatives are more direct, more intelligent, throw more liO'ht on the subject under consideration, and are more easily found, ;nd 

you can tell what -was before the House more readilv than you can in the Senate. I think the comparison of the debates of the House 

and the Senate speaks very favorably for the House, because there 

they economize their time more and speak more directly to the q ues- tion, and there is not so much irrelevant debate. I undertake to say 

that the Congressional Globe will show that fact. 

I do not know about a previous question. I think perhaps we ought not to have a previous question in the same way the House 

has it; bot there ought to be some way of limiting debate, as the 

number of _the ~e~ate is now so large, and there ought to be some rule by which all Important measures can be considered, and there 

ought to be some way by which the la-st days of the session shall be 

relieved from the great pressure of busines!.'l. The whole business of 

the session should not, as it were, be forced in a funnel and crowded 

through without any consideration. Some rule ought to be adopted 

by which business can be considered in order, so that one man shall 

not have it in his power to prevent the consideration of an important 

measure, because he has charge of another that he desires to have 

considered. 

If the committee could so modify the rules as to enable us to avoid some of these difficulties, it would be well. I should like to see the 

whole subject, without any indication as to what OUIYht to be done 

referred ~o ~he commi~tee. I believe the Com.mittee o on Rules, com: posed as It IS of expenenced members, may brmg forward something 

at the commencement of the next session that will remedy the difficultieM under which we now labor. I do not want to see any rule 

adopted that will cut off any reasonable debate; but it would be a gre~t gratification if you could take up the Cong1·essional Globe when a. b.Ill ~as under COJ?Sideration, and the subject under consideration, a-s md1Cated by the mdex, would have some reference to what was discussed, so that you could :find it, and not discover that a Senator was discussing every other question except the one under consideration. 

Mr •. CARPENTER. Then it is .a ~~re question of making an index. 

That Is a remarkable reason for hm.Itmg debate in the Senate merely 

that a proper index may be made! ' 

Mr. STEW .ART. Does the Senator from Wisconsin believe that a man has been made, ?r ever will be made, by the newspapers, or by 

anybody else, who will be able to make an index to these rambling 

reports 'f 

Mr. CARPENTER. My friend, !think, is the man who could do 

that to perfection. I should refer it to him, and not have the slightest doubt as to the result. Take the illustration put here: it is said 

that on an agricultural bill we spent two days' discussing Louisiana 

matters .. Is there ;not ~o~e way, in making up the digest, or index, 

of referrmg to the LoUisiana matter, although its discussion came in on the agricultural bill, that bill being laid aside informally f I do 

not see the difficulty. 

I want to say, in this connection, that I am for an index to our re- ports for the purpose of illustrating bow debate can be proloniYed 

her!", and bow. it can be a':"oided .. ~give noti?e that on an early 0

oc- caswn I sha~ mtroduce a bill provi~ng fo~ an md~x and digest of all 

the congre swnal reports, which will obviate entirely the difficulty 

which my friend now bas. [Laughter.] . Mr. STEW ~T. The Senator from Wisconsin bas been my can- didate for President for a ~ong time, [laughter,] simply because I 

thought be bad some executive capacity; but--

1\Ir. CARPENTER. Now the Senator objects to what I said about 

his capacity to make a digest. 

Mr. STEW .ART. His selection of a person to make a di!J'est shows me that be is unfit to be President. [Laughter.] 0 

. The VICE-PRESIDENT. The question is on taking up the resolutwn. 

Mr. ANTHONY. I am not in favor of limitiniY debate in the Sen- at~, but I am perfectly willing that this resolutio~ shall go to the Com- m~ttee on Rules; and, in voting to take it up, I do not wish to be 

misunderstood. 

The VICE-PRESIDENT. The question is on takinO'up the resolution of the Senator from Iowa. I:> • 

The question being put, there were, on a division-ayes 21, noes 24. 

Mr. WRIGHT. I call for the yeas and nays on this question. 

The yeas and nays were ordered; and, being taken, resulted-yeas ~5, nays 30 ; as follows: 

. YEAS-Messrs. Allison, ~111:e.~, .Ant~ony, Boreman, Buckingham, Clayton, Conkling, Conover, Ferry of Michigan, Hitchcock, .Jones, Lewis, Mitehell, Morrill of 

Vermo!lt, Pra;tt, Ramsey, Sargent, Scott, Sherman, Spencer Sprague Stewart 

Wadle113h, Wmdom, and Wright--25. 1 ' • 

N ~ Y:s--::M;essrs. Alcorn, Bayard, Boutwell, Cameron, Carpenter, Casserly, Cooper, DaVl.s, Deil1llB, Fenton_, Ferry of Connecticut, Gilbert, Goldthwaite, Gordon, Hamil- ton of.Maryla.nd, Hamilton of Texas, Ingalls, Kelly, McCreery, Merriman, Morrill of Marne, Morton, Norwood, Oglesby, .Patterson Robertson .SChurz Stevenson 

Thurman, and West--30. ' ' ' ' 

ABSENT-Messrs. Bogy, Brownlow, Caldwell, Chandler Cra!rln Dorsey Edmunds, Flanagan, Frelinghuysen,Hamlin, Howe, Johnston, Logan"' Ransom Saulsbury, Stockton, Sumner, and Tipton-18. ' ' 

So the motion to take up the resolution was not agreed to. 

.AGRICUL:rURAL REPORT. 

Mr. ANTHONY. I offered a resolution yesterday, the object of 

which was to secure the printing of the usual number (and by" the 

usual number" I mean none for popular distribution) of the Agricultural Report. I should like to have that resolution taken up, so as to have the sense of the Senate upon it, because if it is the sense of 

the Senate to print the report it should be done at once and if not . the Commissioner should know it. It is proposed only to p~int tb; same number that we print of bills and reports, which gives one to 

each member of the Senate and one to each member of the House of 

Representatives, and the usual number to the Library and the docu- ment-roo~, ~c. I ~hink if that. is done, then, under a general law, 

the Commisswne! will have the nght to print for his own use twentyfive hun~ed cop1~s, and the Senate would have the right, by passing a resolutwn, to pnnt about twelve hundred copies. That is all that 

the law allows. ~fr. FERRY, of Connecticut. Upon this question I must make the 

pomt of order. This is clearly le!risla.tive business and I insist upon the point of order. 0 

· ' 

ltfr. ANTHO~ry. The resolution is that the Commissioner of A.gri~ 

culture. be directed to present his report to the Senate. That is the 

resolution. 

Mr. FERRY, of Connecticut.' The law requires the Commissioner 

of Agriculture to make his report to Congress. 

ltfr. ANTHONY. Hut does not forbid him to make it to the Senate. 

The VICE-PRESIDE~TT. The Chair is of opinion that the resolution is in order in the form in which it is presented. The question is on taking up the resolution of the Senator from Rhode Island. . ~fr. BOREUAN. _Wil.l ~his !esoln.tion be subject to objection after 

It IS taken up Y If 1t ehetts discusswn, I am opposed to taking it up· 

but I have no objection to the resolution itself. ' ~r. ANTHONY. I do not think it will elicit any discussion. I cer- tamly should not press a discussion against the Senator from New 

York, [Mr. CONKLING,l who bas the floor on the important matter 

that keeps us here, but really we ought to settle this matter before we go away. 

1\fr. MORTON. If there is to be any discussion, I shall call for the 

regular order. 

. Mr. ~THO NY. Cer~ainly I shall not press it now if there is any 

d1scusswn. I have no mterest in the matter more than any other 

Senator. I only want it settled. . The VICE-PRESIDENT. The question is on taking up the resolutiOn offered by the Senator from Rhode Island. 

The motion was agreed to, there being, on a division-ayes 31 noes 11; and the Senate proceeded to the consideration of the foll~wing resolution, yesterday submitted by 1\fr. ANTHONY: 

Resolv9d, T_hat the Commissioner ~f Agriculture be directed to communicate to the Senate his last annual report, With the accompanying papers. 

The resolution was agreed to. 

The VICE-PRESIDENT subsequently laid before the Senate the an- nual report of the Commissioner of Agriculture. 

Mr. ANTHONY. I move that the report be referred to the Committee on Agriculture and printed. 

The motion was agreed to. 

CO~IMITTEE ON LEVEES OF THE MISSISSIPPI. 

Mr. WE~T. With Ute permission of the Senator from New York, 

who, I believe, bas the floor, and with the consent of the Senate I 

should. like to call up the re~olt_Iti?n .w~ich I o~ered, directing the 

Committee on Levees of the MlSSlSSlppl Rtver to sit dnrinO' the recess and I ask the Secretary to read the resolution. 0 

' 

The VICE-PRESIDENT. The Senator from Louisiana moves to 

take up a. resolution, which will be read for information 

The chief clerk read as follows : · 

Reso~ved, Th~t the !'elect Committee on the Levees of the Mississippi River be a~~onzed to Sit dur~g the ~e~es~, :~;nd. to investigate and report upon the con- ditiOn of the lev~ of the MissiSSippt Rtver; also, upon the propriety of the Gov- e~nment of.the Uru~ States a_ssnming charge and control of the same, with a Vlew to their completion and mamtenance; and that they have power to employ a cler~, and that the expenses attending this investi~ation shall be paid out of the 

~~~~r~~~~~e ~fJ~ees~d~ate, upon vouchers approved by the chairman of the 

~fr. FER~Y, of Connecticut. I make the point of order again on th1s resolutiOn, for the purpose of ascertaining the rule of order if we ~ave any, as I ~uppose~ we h~d one decided a. few days since.' This 

IS clearly and directly m the line of legislation. 

The ~CE-PRESIDENT. The Chair is of opinion that the point 

of order IS well taken; that the resolution is not in order. 

Mr. ALCORN. Do~s.tbe~hairdecide that the resolution offered by 

the Senator from LoulSlana IS out of order as being in the nature of le~islative business Y 

The VICE-PRESIDENT. The Chair so decided. 

:Mr. ALCORN. · The Senate bas passed resolutions of a like character during its present session, and I have not heard of any question of order being made in reg-ard to them. 

Mr. FERRY, of ConnectiCut. I think no resolution of this character has been passed. Several have been introduced, but they are on the table. 
118 CONGRESSIONAL' REC-ORD. 

Mr. ALCORN. I will fnquire of the Secretary if the fact is not as I 

state. 

Mr. FERRY, of Connecticut. Iftheyhavepassedididnotobscrveit. 

:Mr. ALCORN. I ask the Secretary, with the permission of the 

Chair, if such resolutions have not been passed. 

Mr. WEST. I can give the Senator the information. On tho lOth 

of March, on motion of the Senator from Indiana, [.Mr. 1\IoRTO~,] the 

following resolution was considered and agreed to : 

Resolved, That the Committee on Privileges and Elections be instructed to ex· amine and report at the next session of Congress upon the best and most practica- ble mode of electing the President and Vice-President. 

Giving them authority to act during the recess on a suuject con- nected with the province of that committee. 

Mr. FERRY, of Connecticut. The point of order was not taken at 

tha.t time. 

Mr. ALCORN. I desire that this resolution may share the fate of 

other resolutions of a similar nature; and, in order that the point of 

order may be discussed, I ask leave to enter an appeal from the decision of the Chair, and I shall call up the appeal at some other time. 

The VICE-PRESIDENT. The appeal will be entered. . 

WITHDRAWAL OF PAPERS. 

On motion of .Mr. DORSEY, it was 

OrdeTed, That H. L. Henry havo leave to withdraw his petition and papers from 

the files of the Senate. . 

Mr. SCOTT. I a-sk that an order be made author) zing the Secretary 

of the Senate to deliver to the commissioners of claims the papers 

of Madame E. Bertinette, Charles A. 1Vare, Ware & Lacy, and William Bailey. In making this motion I wish to state that I have not 

examined the question whether the commissioners of claims have a right to grant a rehearing to parties, and I make this motion at their 

request, that they may decide that question, and, if they see proper, 

grant a rehearing in these four cases. There being no objection, leave was so granted. 

On motion of Mr. HOWE, it was 

Ordered. That Anna E. Carroll have leave to withdraw her petition and papers 

from the :Iiles of the Senate. 

ELECTION OF SE.L'l"A.TOR CALDWELL. 

The Senate resumed the consideration of the following resolution, 

submitted by Mr. MORTON on the 6th instant: 

Resolved, That ALEXANDER CALDWELL was not duly and legally elected to a seat in the Senate of the United S~tes by the legislature of the State of Kansas. 

Mr. CONKLING. :Mr. President, among the evils of our tim~s, few are so hurtful, few should be so odious, as the pollution of elections. 

Stuffing ballot-boxes, employing gangs of repeaters, falsifying counts, 

forging returns, belying and defiling elections, whether in legislatures or elsewhere, by bribery and other venal appliances-all these must be 

eradicated if free institutions are to be unsullied and secure. If the 

committee, in the case at bar, has shown us how to strike a lawful blow 

at this abuse in any of its forms, that blow ought to fall, crush whom 

it may. "More sinned against than sinning," though he be, the fate of an individual is but an incident, I had almost said a trivial incident, 

in the matter which proceeds to-day. But we must keep within the law~ If we go beyond it, we ourselves become usurpers and ministers 

of wrong. If we trample on the law, we become enemies of order and 

of public right, be our purpose good or bad. We are not to do evil 

that good may come. We perform a grave, nay, a solemn, judicial 

duty. We are to steel our hearts against sympathy and emotion on the one side, and be deaf to applause and clamor on the other. We are to hold with unfevered hand the exact scales, knowing nothing, 

hearing nothing, seeing nothing but the law and the evidence. We are not to make the law, but only to administer it; we are so sworn. What is the law of this case T What is the warrant which meas- ures our action f Were the resolution one of expulsion, the question 

would be radically different. Our action then would appeal to that 

great right inherent in everybody, not in nations, masses, or parliaments alone, bu~ in every human being, a right found in the first law 

of nature, the right of self-preservation and self-defense. Chief Justice Shaw, in the case cited from 3d Gray, has told us that there ex- ists inherently in every legislative body the right to preserve, protect, 

n.nd purge itself. Reason tells us so. 'The Constitution tells us so. Here is the text : 

Each Rouse may determine the rules of its proceedinas, punish it.s members for 

disorderly behavior, and, with the concurrence of two-t'iiirds, expel a. member. 

The majority of the committee has not invited or permitted us to 

proceed under this power. The discussion has been kept away from 

illustrating this right, and a-scertaining whether the case at bar falls 

within it. We are summoned to interpret and exert a widely different power; and in order to adopt the resolution before ns, we must 

interpret and exert a power as it was never interpreted before in 

either Honse of Congress, or elsewhere, in the life-time of the Republic. No -word of history, judicial or parliamentary, no decision, no suggestion, no recorded authority, has been found in favor of the 

uction now invoked. 

In 1\Iarcb, 1871, Mr. CALDWELL entered the Senate. He was regularly 

received and sworn in. He has ever since sat as a Senator, voted as a Senator, acte.d as a Senator, received the pay of a Senator, and exer- cised all the privileges of a Senator. His credentials are without flaw, 

and he possesses every qualification of a Senator known to the Const.itntion, and therefore every qualification which we have the right 

to exact~ The legislature of Kansas, by a maJority of twenty-five 

above the re<]_nired number, and of fifty-one over all his competitors, 

elected Mr. CALDWELL Senator, at the time and place, and in the m:m- ner, required by law. Every one who voted had the right to vote, as a member of the leQ'islatnre of Kansas, and to vote in time, place, and manner as he did vote. Everyone voted intentionally; the votes were honestly counted and legally returned. And now, after more than two years, we are asked to declare that, in truth, Mr. CALDWELL was never elected at all; that no election took place in Kansas in 1871 ; 

and that in law the seat has been vacant all the time. Upon what 

ground are we asked to pronounce this tangled, incoherent, and r e- pugnant judgment f Upon the ground that it is now believed by a majority of the committee that "some members of the legislature of 

Kansas" (these are the words of the report) were at heart actuated 

in giving their votes by impure and sordid motives. Such is the judgment we are asked to pronounce; such is the ground upon which it 

must rest. I cannot so pronounce; my oath, as I understand it, forbids me. Thjs, after much serious reflection, is my conviction; a conviction held in abeyance until the discussion, day by day, established it; a conviction which will be surrendered whenever I am able 

to discover its error. One of Rome's famous maxims was, ''Let what each man thinks of 

the republic be written on his brow." In the spirit of this injunction, 

it is fitting for every Senator, in a proceeding like this, to avow his 

opinion and his reasons. And so I venture to state, more or less in 

full, the reasons which convince me. The Constitution declares that the Senate shall be the judge of" the 

elections, qualifications, and returns of its members. What does this mean f It means that the power to judge, is deposited here. It means nothing touching the scope or nature of the power to judge. It ere-· ates nothing; it invents nothing. It locates with us the judicial' 

power in such cases; that is all. It lodges the power to judge, not 

elsewhere, but here. It withdraws from the judicial department a certain portion of judicial power, and reposes it with us. Suppose 

it had been ordained that "the Supreme Court shall be the judge 

of the elections, returns, and qualifications of Senators," would the 

power then be greater, or less, or differenU The Constitution only names the depository of the power; it deals with an existing, known, 

and certain thing, and says it shall reside here. I say a known 

and certain thing, because that is certain in law which can be ren- dered certain, and that is known which can be ascertained and determined by the law. Must we not judge as a court would judge f 

Mnst not a court judge under the law-not under the law, as my 

learned friend from Ohio [Mr. TIIURMA.N] intimated, as it happened 

to be at the moment of the adoption of the Constitution; but under 

the law as the law is at the time when the judgment is to be given Y 

Is not this a court T The Constitution says : 

I The Senate shall bave the sole power to try all impeachments. 

Must we not try impeachments as any other so authorized tribunn.l 1 would try them f Must we not ascertain the truth as any other 

court would ascertain it, and then pronounce it without fear or favor, as any other court would pronounce it f If an appeal would lie 

from our judgment in this case, must it not stand or fall on exactly 

the same grounds as if a court were acting in our stead f And should 

not a court of last resort be more circumspect and careful than any 

other Y IIow many times have lawyers here heard a wise- and pure 

judge, sitting in a court of first instance, say, "It matters little which 

way this question is ruled now; I will not stop to consider it, because 

both parties have the right of review;" but when sitting as a court 

of last resort, every pure tribunal most be cautious to the last degree. 

In proportion as a power is supreme and absolute, is the obligation to 

exert it carefully, supreme and absolute also. If a power be final, free 

from revision, high indeed is the duty not to transcend its limits and 

not to tread on uncertain ground. 

Let us, then, banish the idea that the Senate of the United States, or any other creature of the Constitution, a-cting judicially, is a law 

unto itself. Let us see to it that we do no violence to the settled 

rules of evidence, nor to the established principles of law; for they are the last sanctuary of us all, Government and citizens alike. Burke 

said the object of all government was to put twelve honest men into 

the jury-box. The end cannot sanctify the means. We cannot plead 

in extenuation of exceeding our authority, that we have a laudable 

object in view. Error, is never so subtle or dangerous, as when it 

aims at good. The history of fanaticism is the history of error aiming at good; and the annals of fanaticism may be found in the blackest and bloodiest pictures in the book of time. 

The honorable Senator from Ohio told us yesterday of the actual 

question before ns as he understands it. A.s stated by the Senator, the 

question is, has the Senate the courage to pronounce guilt¥ Nay, Mr. 

P-resident, I fear the question is rather, has the Senate the ::firmnes 

and calmness to face popular impatience, which may charge us with 

approving bribery unless we declare that going back two years wo can recall and reverse a political and legal event, although its nature be such as to put it beyond our reach Y The question is rather, whether 

the Senate has the tranquillity to assert the law, unmoved by a con- fused and hasty, though conscientious, sentiment which may insist 

that we approve knavery unless we declare that we can undo and 

destroy an accomplished fact. The question is rather, has the Senate 

the high courage which can resist a strong tenwtation to take the 

shortest cut to correct a flagrant evil, if the Constitution S:J.¥'3 wo ; must reach it by another road T 
• 

1873. CONGRESSIONAL RECORD. 119 

Can we determine coolly a,nd aright the one matter of our j urisdiction Y If we can, it must be by keeping in check indignation and 

feeling, and putting aside the aggravations of the case, and our inclination to resort to a summary remedy. Who that would determine 

by conscience and judgment, his right to do an act, appeals to his 

wish to do it f What wise and safe judge who sits down to measure the limits of his jurisdiction, inflames his impulses by dwelling upon 

the ulterior merits of the caseY Jurisdiction is one thing; the judgment that should be rendered, in the proper proceeding before the 

proper tribunal, is another. In the State of New York no murder can be punished unless the indictment be found in the county in which the 

murder was done, or the homicide occur within five hundred yards 

of the county line. It was in such a case, the ~order being proved, 

but proved on the farther side of a line not wider than a hair, that a judge said it might sometimes be the highest duty of a jury to pro- nounce a man innocent in law though they knew him to be guilty in 

fact. Such are the rugged landmarks, such the impassable barriers, 

separating jurisdiction and power, from the merits of the particular case in which action is invoked. Strong disposition breeds excess. Indignation, however laudable, disturbs the exact faculty of reason, as momentum displaces matter. 

Every infraction of law is in itself a wrong, however praiseworthy 

the impulse which prompts it. 

Whenever the Senate transcends its authority in order that some good may come to pass, the Senate but gilds with a new light the 

agonized exclamation of Roland, "0, Liberty, how many crimes are committed in thy name!" If you would recommend error, say that 

it will promote virtue. If you would make shipwreck of principles, 

show the hardship of their application in a present instance, and some advantage to flow from their violation. But if we would abide 

in the ancient ways of our fathers, we must watch ourselves, not 

when some bad end is to be gained by departing from them, but w ben some lofty or darling object appeals to us and dazes and captures the 

judgment. Wrong, is most to be dreaded wbeu it crusades for right. 

Lotteries are baneful antl forbidden, but you may rescue lotteries 

from public aversion, you may anoint them with public sanction, if 

you will make them lotteries in aid of churches, benefactions, or charity. Churches may be built by lotteries, but it were better they 

did not rise than rise on such foundations. One whose words I have 

double reason to remember, has said that "the endurance of a great 

present evil for the sake of a far-distant greater good, while it is one ~f the distinguishing characteristics, is also one of the most difficult 

achievements of the human mind." Should abstinence from unwar- ranted procedure stay the avenging hand uplifted now, we shall learn 

after many days that abstinence was wise. Socrates was a majority 

in Athens when Socrates was all alone with right. 

There are many things which the individual States may do, and 

of which there is power somewhere to judge. The force and extent 

of the power to j odge in this case, may be learned somewhat from 

kindred cases. The States may enact laws, except as forbidden in the Constitution. There is power to judge of these laws and of their enactment. 

The field of inquiry is striking in its resemblance to the field in which we are. What are the tests by which a statute of a State may 1;>-e tried f 

These are some of them: ·wa-s the enacting body a legislature f Did 

the alleged statute undergo the requisite legislative process f Were 

three-fifths or two-thirds present, as may be the requirement in the ca.se f Was there fraud in the count of votes, or in the enrollment f 

Let me at this moment guard myself against a possible criticism. 

Speaking of the ~sts of a legislative act, I speak of fraud in the 

count of votes. I know it may be said that a court investigating 

such a question would bo concluded by the record. Very likely; bot 

that is a mere rule of evidence; nothing more. The court has power 

also to inquire whether tho votes which are alleged to have enacted a statute were given and counted, and whether they did effect its enact- • m~nt. So, too, the court has power to inquire, subject always to the 

rules of evidence, whether then~ was fraud in the enrollment of the act. 

I do not see the honorable Senator from New Jersey, usually seated on my left, [l\Ir. STOCKTO:Y ;] he has recently argued in his own State a cause of much gravity, in which one of the questions was, whether 

the chancellor of New Jersey could hear and decide that a certain 

provision which appeared in the statute as it was signed by the governor, was or was not there when the process of enactment wa-s finished. I am informed a decision has been announced disposing of 

the case before reaching this particular question, but the indications were that had he decided the point, the chancellor would have 

asserted his right to inquire whether the disputed sectiQn was or was not in truth contained iu the bill as it passed. Such a decision would 

have been supported by many thoroughly considered cases. I here 

refer the Senate to some of the authorities illustrating the power of 

courts to go behind statutes and explore their enactment at every 

stage: GardnervB. The Collector, 6 Wallace, 499; Clare vs. State oflowa, 

5 Iowa Reports; Pond vs. Maddox, 38 California Reports; Fowler vB. 

Pierce, 2 California, 165; Jones VB. Hutchinson, 43 Alabama Reports, 721; 

?eople vs. Mahaney, 13 Michigan Reports; Illinois Central Railroad rs. Wren, 43 Illinois Reports; Cooley on Constitutional Limitations, pp. 

135, ;,_77; State VB. McBridtj, 4 Mississippi Reports, 302; Furgussoo vB. 

Miners' Bank, Sneed, (Tennessee,) 609; People VB. Campbell,;{ Gilman, (I~linois,) 466; Spangler VB. Jacoby, 14 illinois, 297; Hurley vs. Logan, 17 illinois, 151; Prescott VB. Board of Trustees, 19 IJlinois, 324 ; Supervisors vs. People, 25 Illinois, 181; Skinner vs. Demning, 2 Indiana,. 

560; Bonra of Supervisors vs. Heenan, 2 Minnesota, 330; DeBow vs. Tho People, 1 Denio, 9; Bank vs. Sparrow, 2 Denio, 97 ; People vs. 

Purdy, 2 Hill, 31; same case, 4 Hill, 3t34. 

Doubtless a court may inquire, did violence intimidate the legislators, and coerce their action f And here I will notice the position 

imputed to me by my honorable friend from Indiana, [Mr. PRATT.] 

He misconceived me so far as to understand me to contend that we could not in any case go behind the return of a Senator in order to see whether his election was procured byfraud or duress. !instantly 

disclaimed the view he attributed to me. I disclaim it now. I maintain that we as to a Senator, and a court as to a statute, may inquire 

whether duress compelled an act to be done, and clothed it with the 

mockery of legal formalities. Does the Senator from Indiana doubt 

that if a squadron of cavalry should surround the legislature of his 

State and, sword in hand; force from a majority a railway-grant or other 

statute, judicial authority could annul and disown it as no statute at 

all f So I might ask of other cases confounded by the Senator, as it 

seemed to me, with the case now before the Senate. His illustrations 

of duress and deceit or fraud, differ widely from bribery in the principles and remedies applicable to them. Suppose a number of legislators great enough to make a majority were stupefied by drugs 

until reason, will, and sense were utterly obliterated, and then they were made to appear to give the form of assent to a bill or resolution, 

does the Senator doubt tbat the proceeding would be as baseless and 

unsubstantial as the fumes of the intoxication from which it was evolved t 

I say then, speaking of tests to which a statute may be subjected, one of them is, did unlawful violence compel the -actt Was it duly 

signed and authenticated, which is equivalent to " returned" in the case of a Senator V Is the statute in itself valid Y Has it the constitu ... tional "qualifications," comparing it again to the case of a Senator t' 

All these things may be judged; but can any authority dissolve a statute, or deny its enactment, because of the in ward motives of the 

units which made up the legislative body f You may deal with the 

statute ; you may repeal it; you may see if it lacks any quality e~ 

seotial to its validity; you may punish every corrupt author of it; . . but you cannot ignore or deny its existence. Why t Because it is the 

act of a competent body. Such was the view of the Supreme Court in 

Fletcher vs. Peck, 6 Cranch, 87, and such must be regarded as the es- tablished law iu this country. A like limit to the right to challenge 

acts and votes of counties, ha-s been fixed by the Supreme Court in the case of Virginia tl8. West Virginia, 11 Wallace, 39. Where does the 

analogy fail between the case of an act of the legislature for which 

bribed votes were given, aud a Senator chosen by the same legislature who received bribed votes t The honorable Senator from Indi- ana [Mr. M:oRTO~] points us to the distinction. He says: 

It is contrary to the policy of the law to permit a court to inquire whether a statute properly certified was enacted through bribery, but such an inquiry bears no analogy to the question whether the Senate may inquire as to the election of 

its members, for which purpose it is >ested with express power. 

There is the distinction. The court cannot inquire of a statute, but 

the Senate may inquire of the election of a Senator, because the Seon.te is "vested with express power." Are not courts "vested with ex- press power" to judge of the enactment and validity of legislative 

acts V The constitutions of the States vest them with this power. 

The Constitution of the United States empowers the Federaljuuiciary 

expre sly so to judge. Bot, says the honorable Senator from Ohio,. 

[l\lr. THUR:.IA....~,] the Constitution does not say that, in judging of the 

election of Senators, we are to j odge "qu{)ad this or qlWad that." No, 

sir; it says we shall "judge." Does the Constitution of the United 

States say that the Supreme Court, in judging of statutes, shall judge 

"quoad this or qtwad that 'f" Far from it. As it stands in the text of 

the Constitution, the power is uobridlefl; His a power regulated only as every power delegated by the Constitution is regulated-regulated as it shall appear to be when it is read in the light of the gathered 

precepts and maxims of the law. I know it may be said-! surmise 

the Senator from Ohio not in his seat, were he present, would be 

moved to say-" A court cannot challenge the existence or authority of 

the sovereign whose creature it is." True, sir; the Supreme Court so said in the case of Luther vs. Borden. Nobody doubts it. But may 

not a court decide whether in law and in fact an alleged act is the act 

of the sovereign whose creature it is 'f Read the Constitution endowing the Snprerne Court with original and appellate jurisdiction, and 

tell me where, in its powers to judge of statutes, you find mete or bound not in reason obligatory on us when engaged in the proceeding now before us. Yet the courts, with a power as unlimited as ours in 

terms, have imposed their own limit-s on themselves. 

The act of a State in choosing a Senator, is one of a family of acts so identical in their attributes that it is hard to see how they can differ essentially in the tests of their validity. Let us consider some of them. 

Amendments to the Constitution of the United States are ratified by 

States. The proceeding, Senators will observe, is not even legislative 

in its nature. The SupremP- Court ha-s decided, that even the concur- rent resolution of the two Hou::;es of Congress proposing amendments 

to the Constitution, is not a legislative proceeding. The Supreme 

Court deems it a proceeding s"i generis, having, in the case of Holings- worth vs. Virginia, held tha.t the resolution proposing amendments 

to the Constitution need not be signed by the President. Surely the 

ratification of an amendment by a State is not a legislative pro-· ceeding., The Constitution provides that amendments may be rati-
120 CONGRESSIONAL RECORD. MARCH 19, 

fied either by the legislatures of the several States, or by conventions. 

That a convention may do it, proves that the act is not legislative in 

character, and this fact is important, because it divests the case of 

peculiarities supposed to attach to legislative power. Lawyers and 

laymen will alike admit that it is no legislative act when the State 

of New York, not through her legislature but through a convention, 

places the seal of her approbation upon a proposed amendment. And 

who has the courage to say in this presence th::~.t if a mem her of a State 

convention be bribed to vote for a constitutional amendment, the 

amendment would fail if the assent of that State were necessary to 

make the required three-quarters Y Where is the distinction in the 

power to judge between that case and this Y A case arises under the 

enforcement act; it hinges on the fourteenth and fifteenth amendments, and the fact of their being part of the Constitution is denied. 

The court must pass upon the fact that the amendments are or are not in the Constitution; but what would be thought of an offer 

to prove that, a given number of States being necessary to adopt 

the amendments, "some members" of the legislature or convention 

o:( one State voted from venal motives f Let it not be said there is no power to judge whether a ratification of an amendment is valid 

and complete: the executive, the legislative, the judicial departments, each one of them, may andmnstjudge. 

The Senator from Ohio yesterday said the governor of a State must 

sign a statute, and is therefore part of the legislative department, but 

the governor takes no part in the choice of a Senator; ergo, it cannot 

be the legisl~ture, as a legislature, that chooses Senators, aud there is no identity' in principle between the two cases. What will the Senator from Ohio= do with the case' of ratifying a constitutional amendment t ·Mqsif ~be· governor participate in its ratification f Not at all. 

That ca.Se i~ upon all fours with thisa Take another case: "Each 

State shall appoint" -observe the word-not" choose" as in the case of a Senator,• not ·" ratify" as in the case of an amendment, but "appoint, in such manner as the legislature thereof may direct, a number 

of electors" of President and Vice-President, &c. These electors need 

not be elected by·the people; they may be appointed by the legislature, or by the go~eino r of a State, the mode of appointment being optional with the State itself: South Carolina for many years appointed 

electors through her legislature, not by the votes of the people; and 

who ever dreamed that it could be even argued that electors were not 

appointed, that no appointment bad taken place, whenever it might 

be discovered afterward that a member of the legislature had received a bribe Y I speak of electors partly for the answer their case affords 

to a remark made by the honorable Senator from Missouri, [l\Ir. 

SCHURZ.] He reminded the Senator from Delaware [Mr. BAYARD] of a distinction fatal, as he seemed to think, to the argument drawn from 

the limited range of inquiry tolerated in going behind statutes to avoid 

them. The idea in substance was that Senators are not chosen, as laws a:re enacted, by the States of their own mere right without permission of the Constitution~ 

Mr. SCHURZ. The Senator must be mistaken. It was somebody 

else who made that remark, I suppose. I did n~t speak of it at all. 

Mr. CONKLING. Mr. President, one of my infirmities is a some- what tenacious memory, and, under favor, I insist that the Senator 

from Missouri brought forward this distinction, in substance: Though 

the statute of a State is evolved from the power of a State-I do · not stop to recall his expression-the right t~ elect a Senator is a creation of the Constitution of the United States, the Senate itself 

being a creation of the Constitution. 

Mr. SCHURZ. If the Senator will permit me, I will read my re- mark.. 

Mr. CONKLING. Certainly. 

Mr. SCHURZ. This is what occurred : 

Mr. SCHURZ', Will the Senator permit me to ask him a question 7 

Mr. BAYARP. Certainly. Mr. SCHURZ. 1 do not think that I a!ITee with the Senator from Indiana. on a. f!l"eat many questions concerning State rights ; but is it not true, after all, that the 

Senate of the United States is a creation of the Constitution of the United States¥ 

Would the Senate of tbe United States have existed without the Constitution of 

the United States I 

Mr. BAYARD. No doubt the Senate o{ the United States is part of the framework of the Constitution. . :Mr. SCHURZ. The Senate, then, being a creation of the ConstitutionYr. BAYARD. Certainly, as a. means by which the States were to be represented here. 

Mr. SCHURZ. Precisely; the Senate being a. creation of the Constitution of 

the United States, not established for the purpose of giving the States, one sov- ereignty, diplomatic representatives near another sovereignty, but for the purpose of forming a distinct branch of the legislative department of the Government, is 

not, in so 'fillr, a memb&" who becomes part of that body also a creation of the Con. 

stitution of the United States in his politica.l existence¥ 

When I said that the Senator disremembered, I referred to that 

sentence which he attributed to me concerning the creation of a 

statute passed by the State legislature. I have read all that I said 

on the matter referred to. 

Mr. CONKLING. Mr. President, love of offspring is a pervading 

instinct of animated nature, and pride of paternity, satisfied with 

nothing but exact quotation of his words, is pardonable in a master of 

diction like the Senator from Missouri. My mind is not microscopic enough, however, to discover wherein I injuriously or materially mistook the position of the Senator. · Mr. SCHURZ. If the Senator bas no objection--

Mr. CONKLING. None. 

Mr. SCHURZ. The Senat-or will observe that I did not contradict 

him as to what he said subsequently, but only in attributing Ianguage to me with reference to statutes enacted by State legislatures. 

I did not refer to that at all, but simply to the Senate of the United 

States as being a creation of the Constitution. 

Ur. CONKLING. The Senator from Delaware was at the time 

speaking of the modes of impeaching statutes, and it will be plain to 

the Senator in a moment that the purpose for which I refer to his 

remark is not affected by the precise terms he employed. The Sen- ator from Missouri saw, or thought be saw, a legal or philosophical 

distinction between the power to revise the enactment of a statute, which the Senator from Delaware was stating, and the power to 

revise the choosing of a Senator, because, although a statute rests upon the foundation of inherent State power, the election of a Sen- ator is permitted or authorized by the Constitution of the United 

States. I inquire now whether the President and Vice-President of 

the United States are not both creations of the Constitution Y I in.., 

quire whether the States appoint electors for President and VicePresident of their own right and motion, or whether, like the right 

to elect a Senator, it is derived from th~ Constitution of the United 

States Y These offices are part of the frame of government. The 

Senator must now see my purpose in referring to his remarks, and, I 

think, it will be as difficult for him as for rue to find a distinction·, the minutest, between appointing electors and choosing Senators, in 

respect of the origin and source ofthe power in the States~ 

Let me present still other illustrations~ 

Appointments to office, are by the advice and consent of the Senate. 

A quo warranto brings into the sunlight of judicial investigation every 

element of virtue or vice in the tenure by which one claims an office. Brought into court to establish the right by which one claims 

to exercise an office, be is vulnerable through every avenue of attack 

known to the law~ Will it be said that a commission could be vitiated, 

and a confirmation by the Senate a"1oided, by proving that one mem- ber of this body bad been bribed to vote for. the confirmation, even if 

that vote gave the requisite majorityf You may expel the member 

who was bribed, you may indict and impeach the man who bribed 

him, but can you say that the appointment was not made f 

The President and the Senate together make treaties. The President without the Senate, is as powerless as a private citizen to con- clude a treaty. The Senate, as much as the President, makes a treaty. 

If the President be bribed to make a treaty, the Honse may impeach 

him; if Senators be bribed to make a treaty, they may be expelled; 

they may be punished. But would Christendom scream with laughter, or be grim with contempt, if a nation were to say "We refuse to 

observe this treaty because it was carried by bribery in the Senate, and therefore it was never made, and is no treaty t" Yet such a denial of the validity of a treaty, might summon to its aid all the 

sovereign attributes and faculties, all the ethics untrammeled by 

technical modes and forms, to be found in the unmea,sured realms of 

natural law. 

Courts, and heads of Departments, appoint officers; courts, commissioners and registers in bankruptcy; heads of Departments, clerks 

and postmasters. Was it ever conceived that reason or law would 

brook an attempt to make out that an .appointment was not made 

because the appointing power was bribed to make H f 

Pardons are granted and vetoes are imposed by presidents and gov- ernors and councils. May they be canceled for bribery t A pardon 

is often subjected to every test of which a paper is susceptible. The 

statute of a State declares that a man convicted of certain felonies 

shall never be heard more as a witness in court. The life of a citizen 

being at stake, such a convict offers himself to testify, but the record 

of conv:ictfon is rea-d and he stands mute; he dra.ws forth a pardon, 

however, issued, perhaps, by the governor of Massachusetts, where a council recommends pardons to the governor, and reads it, and though 

his sins were scarlet, if the pardon be valid, instantly he is white as snow. The pardon in such a case becomes the pivot upon which 

everything may turn. It is in issue. It may be assailed and destroyed in any way known to the law. It may be proved that it was obtained by fraud-just such fraud as the Senator from Ohio 

referred to yesterday, not, I suppose, to darken counsel by words, 

but to administer a tonic to the courage of the Senate, when he 

asked if it was contended that if a man were elected Senator by 

false personation the Senate could not inquire into the fact. Let me apply the Senator's question to a pardon. Is it contended if a blank 

paper be laid before the President and he asked for his autograph, 

and writes it, and afterward a pardon is written above the sig-na- ture, that the facts being proven in court the pardon would not fill f 

If one by personating another procures a signature, or if one induces the governor of a State to sign a pardon, he not knowing what 

be signs, and not meaning to sign it, the paper could not stand. The 

Senator from Ohio yesterday told us of something older than Chris- topher Columbus ; has any discoverer before or since the daring 

Genoese, ever found on the seas or the shores of jurisprudence, that 

you may dissolve a pardon, and prove that it was not issued, by showiug 

that the pardoning power received a bribe to grant it, or a bribe to one of the executive council from which it came f How will Senators 

draw a distinction between a pardon given by a governor, or given by a council or legislature, and the case at bar, as regards the question 

of the effect of motive, be it bribery, glory, or shame f 

Let me put another case. The supreme law of the land imposes 

disabilities upon those who unsheathed the sword against the Republic when oaths had bound them to defend it. By the Constitution 

these disabilities may be removed by two-thirds of both Houses of 
1873. CONGRESSIONALi RECORD. 121 

Congress. The late Senator from Kentucky, (Mr. Davis,) whose integrity, courage, and learning always won respect, argued strenuously, 

and so others have done, that the proceeding removing disabilities, 

is not legislative in character; that such a resolution does not, like a bill, require the signature of the President. Be that as it may, 

I ask Senators to ponder thiB position. On the statute-book are two oaths, without taking one of which no man can enter here as a member. One is a modified oath, which those who were disabled, and 

they only, may take when and only when their disabilities have been 

legally removed. These oaths are among "the rules of its proceedings" established by the Senate under the express warrant of 

the Constitution-rules which the Senate is especially armed with 

power to enforce, aside from the fact that a statute creates and en- forces them. As often as one comes here with uplifted hand to enter 

the membership of the Senate, we upon our oaths judge of b is elec- tion, qualifications, and returns, and also, under another mandate of 

the Constitution,'decide whether be may forego the general oath and 

take the modified oath merely. Suppose in such a case, an objection 

raises the question whether the disabilities have been removed; the 

inquiry would go beyond the question which oath must be required; 

it would go to the election itself under the argument we have 

heard, for we are told the ancient law of Parliament is the rule of our conduct, and that ancient law declared that where votes were giYen for one who could not hold the office, majority though they 

were, such votes were blank and null, and the minority candidate 

who could hold the place was elected, no matter bow few the votes 

he received. A Senator rises and says, "I object to those credentials; 

they are the credentials of one who cannot be a Senator; I say his 

competito-r was chosen; but I especially object to his taking the oath, 

because his disabilities have not been removed ; I ask a reference of 

the question to a committee to examine it;" and a cloud of witnesses 

stand ready to prove that the vote by which in the House of Representatives the disabilities were removed, was bought with money. 

The offer might be to show that a bare two-thirds voted, and of that 

two-thirds five were paid for the votes they gave. 

In such a case, Mr. President> I -submit we would have full posses- sion of the whole question touching the votes and motives of individual members. It is not a statute of a State, it is not a constitutional amendment, it is not presidential electors, which must then be 

judged; but a proceeding invoking the power to judge of the elections, qualifications, and returns of our members, and to execute the 

"rules of proceedings" of the Senate. What is the answer t-o this 

analogy f Yet who would argue that we could decide the disabilities, not to have been removed, because the motives of members of the 

House who voted to remove them were begotten of bribery f To 

state such a proposition is to refute it; to argue it would insult 

the understandings of men trained in the maxims and methods of 

the law. 

Some of these illustrations suggest the distinction between bribery 

and fraud, duress or deceit. If a signature be obtained to a pardon, or a commission, or a bill, or a treaty, by duress, or by substituting one name for another or one paper for another, so that he who signs 

does not mean to sign, or does not know what he signs, the assent is 

wanting, and theretore the act is not done. But if he signs knowingly and intentionally, his reason for doing so is matter of motive 

merely. It may be love or hate, lucre or ambition, sinful or innocent, 

but the act is done. This distinction, founded in reason, is in wrought 

in the law; it may be hard to apply it exactly to all cases; it may 

fall short sometimes of absolute right in the abstract, but such is the 

infirmity and short-coming of all general rules. 

The Senate of tbe United States shall be composed of two Senators from each 

State, chosen by the legislature thereof. 

I have already inquired, in what legal quality does the act of choosing a Senator differ from the act of appointing electors, or ratifying 

amendments to the Constitution f All are the acts of a body-politic, a corporate entity, a political sovereignty. Upon this ground, the act 

in either case being done, and done intentionally, when the right to 

do it existed, and by those authorized to do it, it is a fact accomplished, a.s finally a~complished in law as soon as it is completed as after it 

has lain in the sepulcher of buried epochs. 

This position is not without authority to support it. Turning to 

the volumes which preserve the judgments of the Senate, we find 

plain expressions upon the question now before us. . In one instance 

especially, we find a record copious in instruction and persuasive in 

illustrious names. I refer to the contest for a seat in the Senate in 

1834, between Potter and Robbins, cited at large in Clarke's ContestedElection Cases, pp. 887 et seq. When reference was made to this au- thority, the Senator from Indiana [Mr. MORTO~] twice insisted that 

bribery was not necessarily considered, because the Senate could have 

decided the right to the seat without referring to the legal effect of 

bribery entering into the choice of a Senator. Why uoes the Senator so sedulously keep before us that the committee and the Senate in 

that case might have abstained from expressing an opinion upon 

their right to treat as a nullity the a~tion of a legislature in connec- tion with which members received bribes Y Manifestly the object is 

to prove that the opinions given are not to be regarded as authority. 

Why not! Because in the phrase oflawyers, everything said in denial 

of the power to judge of the votes and the motives of the individuals 

composing a legislature, was obiter dictum. Surely this criticism has 

little force. Had the effect of bribery, been the very point in judgment, 

and the only one, the opinion of a committee, or of the Senate, would 

not be binding on us; it would not bind ns as the judgment of a judicial 

court binds the parties and inferior tribunals, nor would it settle the 

rule of our judgment upon the doctrine of stare decisis. Precedents are authority only from convenience, and because of their moral influ- ence in aid of the conscience and judgment of the Senate. · I maintain that the opinions expressed in the case of Potter vs. Robbins, have all the weight, all the application to the present case, and 

deserve all the respect from us, to be ascribed to them had their au- thors pronounced them on any other occasion upon their responsibility as Senators and lawyers. They are to be referred to, as we refer 

to the Federalist, the Commentaries of Blackstone, of Kent, or of 

Story. If we may rely only upon utterances technically needed in 

the actual decision of a naked issue, we may dismiss the wisdom of 

publicists and commentators, and write obiter dictttm against the 

sayings of the apostles and sceptred sages with whose words the 

sa.cred leaves are filled. When Israel's thoughtful King said "Better 

is a dinner of herbs where love is, than a stalled ox and hatred therewith," the justness of the observation was not impaired, nor does it 

impart less instruction tons, because the precise question was not 

pending before him at the time. He need not have decided the 

point-he might have held, as he no doubt believed, that the democrats and other opponents of his administration deserved no dinner 

at all; and that the republicans should have such a dinner, every one as he pleased, and there the matter would have ended. He chose, however, to state the result of his reflections, and to make it matter of 

record. · But, Mr. President, it so happens that the opinions from which I am about to read are not liable to the remark that they transcended 

the needful limits of the case. The right and power of the Senate to 

explore the elections of its members-the question for what reasons an election might and for what reasons it might not be disputed and 

denied-was the very subject to be considered. This subject, in its 

various ramifications, was the very matter discussed in the report of 

the committee, and in the "views of the minority." The case occupies more than a hundred crowded pages. It was elaborately considered, 

and tenaciously contested at every step. It encountered all the forms 

of parliamentary scrutiny, and all the doubts conflicting minds could 

start. The committee which had charge ~fit consisted of Mr. Poindexter; Mr. Rives; Mr. Frelinghuysen, the ancestor of a Senator who, 

holding now oneofNew Jersey's seats, illustrates one of New Jersey's 

greatest names; Mr. Wright-Silas Wright, of New Yor~ in the 

shadow of whose massive name I am willing to stand on a constitutional question; and Mr. Sprague. Two reports came from the com- mittee-reports conflicting upon certain points, but concurring upon 

the question which occupies the Senate now. Who sanctioned these 

reports f They were approved by Calhoun, Clay, Clayton, Ewing, 

Leigh, Mangum, Preston, Sonthard, Webster, and the rest . .After full 

discussion in committee, after debate in the Senat3, this group of 

almost matchless men concurred in fixing the bounds of the Senate's 

power under a clause of the Constitution ; and now we are told that 

it is hardly worth while to read what they thought, because neither 

Mr. CALDWELL nor the facts of Mr. CALDWELL's case were before 

them. 

I ask the Senate to listen to a few passages-first from the majority 

report: 

The Senators from each State are eqnal in nnn:.ber, and cannot be increased or diminished, even by an amendment of the Constitution, without the consent of the 

States respectively. They are chosen by the States as political sovereignties with· out regard ~ their representative population, a:nd form the Federal branch_ of ~he 

nationallegtslatnre. The same body of men whtch possesses the powers of leguilation 

in each State is alone competent to appoint Senators to Congress for the term prescribed 

in the Constitution. 

In the performance of this duty, the State acts in the highest sovereign capacity, and 

the causes which would render the election of a Senator void must be such as would destroy the validity of all laws enacted by the body by which the Senator was chosen. 

Other causes might exist to render the election voidable, and these are enumerated 

in the Constitution, beyond which t.he Senate cannot interpose its authority tG disturb or control the sovereign powers of the States, vested in their legislatures uy the Constitution of the United 8tates. We might inquire, was the person elected 

thirty years of age at the time of his election¥ Had he been nine years a citizen 

of the United StateeY Was he, at the time of his election, a citizen of the State 

for which he shall have been chosen 1 Was the election held at the time and place directed by the laws of the State Y These are facts capable of clear demonstration 

by/roofs; and in the absence of the requisite qualifications in either of tbe speci- fie cases, or if the existing laws of the State regulating the time and place for 

holding the election were violated, the Senate, acting under the power to judge of 

''the elections, returns, and qualifications of its own members," might adjudge the 

commission of the person elected void, although in all ot.her respects it was legal 

and constitutional. But where the soverei~n will of the State is made known 

through its legislature, and consnmm!'-ted ~y 1ts proper official ~nnctionaries ~ ~ue 

form. it would be a dangerous exertwn of power to look behmd the comrrusswn for defects in the component parts of the legislature, or in to the peculiar organization of the lJody, for reasons to justify the Senate in declal'ing its acts a\Jsolntely null 

and void. Such a power, if ca1'T'i.P.d to its legitimau extent, would subject the entire scope of State legislation to be overruled by our decision, and even the right o.[ suffrage 

of individual members of the legislature, whose elections were• contested, mtght be set aside. It would also lead to investigations into the motives of members in casting their tJOtes for the purpose of establishing a charge of bribery or corruption in particular cases'. These matters, your committee think, properly belong to the tribunals of the 

State, and cannot constitute the basis on which the Senate could, without an infringe- ment of State sovereignty, claim the right to declare the election of a Senator void, who 

possessed the requisite qualificativns, and ,was chosen according to the form-s of law 

and the Constitution. 

These general views are offered to show that contested elections in the populnr 

branch of Congress, where the people exert, in their primary capacity, the right of suffrage nnner various limitations and restrictions in the choice of Representa- tives from certain prescribed districts, open a much wider field of inquiry and invclitigation than a Zike wntest for a seat in the Senate, which is a body whoUy federative i1~ 

its character and organization, and whose nwmbers hold their appointmBnt8 from and 

represent the States as political sovereigntiss. 
122 CONGRESSIONAL RECORD. ~lARCH 19, 

The report, fiiTther on, proceeds : 

Your committee having regard to these rulesThose just read among others- as applicable to all contested elections in the Senate, proceed to apply them to the case now under consideration. 

The Senate will see that, instead of regarding the ma.tter "treated of a.s foreign to the case before it, the committee pl:.tinly says that the 

case depends upon the " rules" enunciated. . · Sila-s Wright and .Mr. Rives dissented, not from the principles or cloctrines I have read, but from their application and result in the case then in hand, and, in his dissent, Silas Wright, speaking for himself and for Mr. Rives, eays: 

So, also, in the case supposed by tlul majority of the committee, of alleged bribery and 

cor-ruption. Tlu undersigned has always rupposerJ, that a member of a legislative body 'Who slwtild accept a bribe was punishabT:ejor the c-rime, but he has never understood, nor doe.s he now understand, that the ?Jote of the mernber given under the corrupt 

i nfluence vitiated the proceeding voted upon, or rendered either void or voidable by legal 

adjudication such proceeding. The me1nber bt-ibed is still constitutionally and legally a 11ternber of the body notwithstanding his corruption, and retains all his rights and 

all his powers as a member, until conviction/or the crime ousts him from his seat. 

Mr. President, where is the authority, where is the argument to 

refute the principles there laid down and affirmed by a weight of 

authority more than respectable, more than persua-sive'f 

But we are asked," Is there no remedy for bribery; does no storm 

slumber anywhere with power to burst upon the bends of those who 

profane elections and buy seats in the Senate f Shall we fold our arms and sit quietly by, while corruption stalks high-headed in the 

public way Y" The honorable Senator from Indiana mused in this hopeless strain : If there be no power either in the Senate or in the Sta.te legislature to inquire 

whether an electiou has been procured by bribery or fraud, then the evil woultl be 

irremediable, however gioss and wicked the instance; and if such be the position 

of the Senate, it is perhaps the only legisL1.ti ve body in the civilized world in such a helpless conditiona lament, the refrain of which came back yesterday from tho honorable Senator from Ohio, [:Mr. THUR:\'IAN.] This is gloomy, to be sure; 

but let us cheer up; the case is not so sad after all. 

Remedies are not wanting. First, the States may a.nd should enact 

l:1ws to indict and punish, nay, they may execute, the man who gives or takes a bribe. Is there anything in the Constitution to prevent 

capital punishment from being inflicted in such cases Y 

.Mr. HOWE. Nothing that I know. 

Mr. CONKLING. The Senator from Wisconsin says that nothing 

that helknows; and what he does not know I will not try to :fi.ncl out. 

[Laughter.] 

We are appealed to for remedies. First, I repeat, the State bas 

power to deal with and punish every actor in a transaction of bribery, · not more the member of its own legislature who accepts the bribe, 

than the expectant member of the Senate of the United States who ·offers it. Secondly, Congress ma.y do the same thing, and Congress 

may disable the briber, too. The two Houses of Congress have power, 

under the Constitution, to enact a statute under which every man who 

in a sepatorial election offers a bribe (whether he succeeds in buying a Senatorship or not) may be punished; a statute which shall disable a briber to sit in this chamber, though he be crowned with election 

piled upon election as long as his life lasts. Thirdly, the Senate may 

expel a member guilty of bribery, the facts bringing the case within 

the jurisdiction of the Senate. All, or either of these three remedies, 

will remove the offending meml>er. Either of them will vacate the 

seat. 

.Mr. FERRY, of Connecticut. .May I ask the Senator a question 1 

.Mr. CONKLING. Certainly. 

.Mr. FERRY, of Connecticut. There is one point, in regard to which 

I should like to hear the opinion of the Senator from New York. Suppose that the Senator-elect at the time of his election was abroad, 

knew nothing of the election, but that parties in his State, having 

purposes of their own which they believed him best qualified to sul>- serve iu the Senate, bribe a controlling majority of the legislature, 

and thus secure his election; as the law now stands, is there any 

mO<.le of depriving him of the right of taking his seat and maintaining it iu the Senate Y 

Mr. CONKLING. A pregnant question-a question which sifts and 

tests some of the arguments we have heard; arguments which 

Rtrangely insist that in dealing, not with the offender but with the 

election itself, and judging whether the action of the legislature was valid or void, our judgment must stand or fall with the privity or complicity of the candidate himself. 

If we can inquire into the election on the ground of alleged bribery 

in the State legislature, it is, upon that question, matter of legal iullifference whether the money was paid by the candidate himself, or whether, he being beyond sea.s, some officious and corrupt partisan 

employed money for him. When we deal with the Senator-elect, and 

try or expel him, the all-important question is, was be pa1·ticeps 

criminis f nut when we are dealing with the election alone, it matters not, in my view, in the .absence of a statute vitiat.ing it, whether he bribery was with money paid by a candidate, or by a railway or ferry company, a free-trade league, or drawn from the contributionbox of the poor. 

It follows from this that the question of tile Senator but presents in 

another form the case before us. 

This branch of the inquiry embraces the powP.r of the Senate to 

inquire into the motives of members of a State legislature, be the case the enactment of a law, the choice of a Senator, or the ratilicatiou of 

a constitutional .amendment; ancl if the power cannot be found in 

the case of Mr. CALDWELL, it cannot be found in the case put by the 

Senator, unless the supposition of a. larger number of votes l>eing 

cast from venal inducement alters the question. 

l\1r. FERRY, of Connecticut. Then the Senator will answer my 

question in the negative-that there is no mode under existing law in 

the circumstances which I have supposed by which the member thus 

elected wouJd be prevented from occupying his seat in the Senate. 

Mr. CONKLING. I answer that if there be no con-stitutional provision or statute in the State affecting the case; if there be no statute 

of the United States providing for it; if the member elected so stands 

that the expulsion clause of the Constitution does not touch him; it it~ not easy to see how judicial power could mend the matter. 

I will tell the Senator from Connecticut of the only absolutely 

effectual remedy for such dire debauchery-it is public virtue. You 

may multiply statutes until you have piled Pelion on Ossa; Paul 

may plant and Apollos may water; we may rend our garments and 

rend the Constitution; but unless the effort is rooted in the public 

conscience, it will fail and perish. Look at Engl:.tnd, honevcombed 

with bribery, every parliamentary election a. carnival of fraud and 

venality from Cornwall to Northumberland; and then look at her 

jurisprudence, bristling with :fierce and sweeping statutes. 

I turn now to an idea advanced by the Senator from Georgia, [Mr. 

NORWOOD,] who yesterday de1ivered his views so clearly and so well. He said, and the Senator from Ohio [Mr. THURMAN] afterward strove to add force to the suggestion, "Is it not absurd to bolu 

that a man who has been gnilty of l>uying votes to elect him to the 

Senate, shall be admitted aa a Senator, and then shall be expelled Y 

Why not keep keep him out, instead of putting him out after letting 

him in Y" 

Can such an argument be really intended for lawyers f Is it to 

instruct the court, or to amuse and daze tb,e spectators Y The n.s- tute Senator from Ohio seemed not to have his minll or his eye on the Senate, for he said that the people were not metaphysical enough 

to understand such a doctrine. He underrates the people, I thiuk. 

Is the Senator himself so metaphysical as to understand how, sitting upon the bench, be might adjudge a man and woman to be man and wife, in l:.tw and in fact, and afterward proceed to divol'ce 

them Y Why not say they are not married, and done with it Y Why 

say they are married, ancl then say they shall not remain man an1l 

wife Y The absurdity charged is in admitting that an election of a Senator took place in Kansas, and then proceeding to consider 

whether Mr. CALDWELL shall be expelled or not. I would llo just this. If it be absurd, make the most of it. 

I call no argument made in the Senate absurd, but one thing I clo 

know: it is not true, it cannot legally l>e true, both that Mr. CALDWELL was not elected, and that we may expel Mr. CALDWELL. The 

two things cannot exist together; they deny and destroy each other. 

l'tlr. NORWOOD. Will the honorable Senator pardon me for one moment Y 

Mr. CONKLING. Certainly. 

Mr. NORWOOD . . The answer to the case of marriage which he 

suggests, in my judgment, is this: No divorce is ever granted by a court, as the honorable Senator knows, as a question of law, until the 

fact of marriage is established; and when that fact is establishecl, 

then the court proceeds to adjudge whether a divorce will be granted. But it seems to me that is not the case of Mr. CALDWELL at all. We are to judge of the fact n.s to whether Mr. CALDWELL was entitled to 

his seat, having been guilty of bribery. I say we could judge of it 

before he was admitted. The honorable Senator says we cannot 

judge of it until after he is admitted; that we must admit him to his 

seat, and then decide the question of bribery, and, if he is guilty, expel 

him. Suppose a member presented himself here who w:ts under a disqualification under the Constitution, and that fact was brought to 

the knowleclge of the Senate, should we have to admit him, and then 

vacate his seat 'f Suppose there was any other act for which you 

would expelllim, and that was brought to the knowledge of the Senate, I ask, does it comport with reason that you are first to admit him 

to his seat in order to get jurisdiction over him to expel him Y 

Mr. CONKLING. The Senator from Indiana, the chairman of the 

committee, informed ns in a carefully written speech with which the 

discussion began, that in his opinion this case is cognizable in two 

wa.ys-that we can either hold .Mr. CALDWELL's election void because 

he never was elected, or we can expel Mr. CALDWELL. ~Ir. HOWE. Because he had not been. 

Mr. CONKLING. Let me deal with this claim of duplex j nrisuiction for a moment. Do the States nomina.te Senators for us to con- firm or not as we choose, or do the States themselves choose Semttors T If the States choose Senators, how can we at our option i 11 

one and the same case say tha.t a Sen a tor was elected, or, if we please, 

that he was not elected T Such a doctrine commits the election al>solutely to the will and caprice of the Senate; it does more, it does 

worse, for it affirms that, in the exercise of our will and caprice, we need have no reverence for truth, or even for consistency in error. Is 

not this amazing T With the facts and the law before us, we may, if we please, decide that 1\Ir. CALDWELL was not elected, or, if we please, we may decide that he was elected, or we may decide both ways at 

the same time! Such, in effect, is the position maintained. 

The Senator from Indiana says, :first, that .Mr. CALDWELL never 

was elected. If that be true, can we expel him f No, sir; the case is thou at an end. The Cons~tution ordains that tho Senate may, 
1873' .. CONGRESSIONAL) RECORD. 123 

"with the concurrence of two-thirds, expel a mernber"-a member, 

not a page, not the Sergeant-at-Arms, pot an intruder, visitor, or stranger; you can expel no man unless lie is a member. He is not a member unless he has been elected. There is but one way known 

among men in which a man can become "a member" of the Senate, 

and that is, being chosen by the legislature of a State. 

If Mr. C.ALDWELL was not elected, can we elect him ; can we ratify or validate his election if it is not good in law or in fact Y Can we say, he was not duly or legally elected, but we will treat him as elected 

for the purpose of expelling him; we will hold him up while we knock him down t No, sir; one of two things is true: either Mr. 

CALDWELL was elected to the Senate, or else we have no power to 

expel him. Instead, therefore, of its being absurd to admit a man on the ground that he is elected, and then to turn around and expel him, 

his admission is a condition-precedent to his expulsion, and indispensable to it. Is this absurdity 7 

It has been said, further, suppose a man, after his election to the 

Senate, be convicted of bribery, alleged to have occurred in his own election, and the record of conviction be laid before ns, would it not 

be absurd to admit him to his seat, and then consider his expulsion Y 

The Senator from Ohio promised-a promise he has never found time 

to redeem-to show us that in expelling a. man for bribery, if the 

bribery took place in his own election, we must investigate the mo- tives of the members of the legislature, and impute the bribery to 

them. It is a. great loss not to have heard this argument; as a feat 

of logic, it must have been past praise. 

The grounds on which a Senator convicted of felony might be ex- pelled, seem easily visible. Conviction of infamous crime, establishes 

the guilt of the convict, and attaints and disgraces him; if he be a Senator, his disgrace affects the Senate, and the Senate may perform a lustration by expelling him. If a record of a competent court informs us that one chosen to the Senate has been found guilty of 

bribery, how does it matter, in respect of the power to expel him, 

whether the bribery occurred in one proceeding or another f Suppose 

he bribed the speaker of the house to make some decision that would 

aid him; suppose he bribed a judge to render a judgment, having no reference to any election-would not the record of conviction in either cruw sustain a resolution of expulsion ;ts well as if it attested the 

bribery of a member to vote for the briber T Suppose the claimant of a seat in the Senate had been indicted and convicted of murder after 

his election; would our right to expel him hinge upon the question w hetber his motive in the murder was to get rid of a rival who might 

stand in the way of his senatorial aspirations Y 

Mr. NORWOOD. If the honorable Senator will pardon me, that was not my position. I suppose he is referring now to the remarks 

of the Senator from Ohio. 

Mr. CONKLING. Yes; to the Senator from Ohio, in part. 

Mr. NORWOOD. I ask the honorable Senator, in the case he sup- poses, if the murder was committed after the election, and the party was convicted, and we had the record here when he presented himself to the Senate, would he hold that that man was entitled to a seat, 

and then, after be was seated, expel him for the murder Y 

Mr. CONKLING. No; I should not bold he "was entitled to a seat ;" I should hold he was elected, and could be expelled from his 

seat. 

The Senator's question but caricatures a little more broadly than 

anything has yet done, the argument necessary to support the reso- lution now on our table. 

Have we drifted so fur from our moorings, are we so lost to legal 

sense, that two opinions can be found among lawyers upon such a case as the Senator proposes T Let me state the case : A record of conviction comes to the Senate, showing that a man who has been elected a Senator bas committed murder, and the Senator from Georgia wants 

to know whether it would not be right for the Senate to declare 

that the Senator was not elected rather than to expel the convict. 

This is only the logical climax of the arguments required by the 

resolution before us. Would not the pages of the Senate laugh, if we should hold that, because a man was convicted of a murder three 

months after his election, therefore he never was elected at all'¥ 

What have the two things to do with each other Y You might as well 

say if a Senator comes here with the small-pox or the delirium-tremens, we shall not expel him, but we must decide that be never was elected. I dismiss as fallacious the doctrine tha.t the power to deny or avoid an election, and the power to expel, are alternative or con- vertible powers, optional with the Senate, and applicable to the same case at the same time. 

Mr. NORWOOD. I hope the honorable Senator will not--

The VICE-PRESIDENT. Does the Senator from New York yield 

to the Sena.tor from Georgia T · Mr. CONKLING. The Senator was so courteous yesterday in yielding to a _question from me, that I cannot refuse to yield to him; but 

my remarks are already so wearisome in length, that I will thank 

bim to be brief. 

Mr. ·NORWOOD. I simply wish to explain to the· Senator what 

my position is on the question be is now discussing. I tried to make 

iL clear, if I aid not do so, yesterday. I understand his position to be 

this: that if 1\fr. CALDWELL procured bis seat here by bribery, he can- not be prevented from taking his seat, notwithstanding that fact were known to the Senate just as well when he presented himself as it 

would be known by the report of an investigating committee after he was sworn in. Now, the case of murder may be a.pplicable wellaa 

bribery; but we will go back to the case of bribery; in other words, we have a case upon which the Senate would feel itself justified in 

law in expelling--

Mr. CONKLING. May I interrupt the Senator'i' Would it not be 

equally agreeable to him to allow me to conclude, and then submit 

his argument Y The .Senator will see that if he injects an argument 

into my remarks, tedious already, they may become unpardonable. I 

would not misstate the position of the Senator, and if I have misconceived him, I beg him to set me right hereafter. · I question the argument which insists that the crime for which a member may be expelled, need be part of the res gestre of his election. 

Had Mr. CALDWELL shot down a man in Kansas last year, had he been 

indicted for homicide and convicted, had that record been laid before 

us, our power to deal with him would, I think, begin and end at the same point, whether the homicide grew out of his election or not. If we could expel.l\fr. CALDWELL for shooting a rival, we could expel him 

for slaying any human being whom the law had in its keeping. In 

either case, his turpitude would be the ground of his expulsion, and 

the effect of the record would be to fasten the turpitude upon him. The 

connection of the act with his election, could, at most, be material only 

upon the question of our jurisdiction of it and of _him. 

I proceed now to inquire how and of what the Senate may judge 

in respect of the admission of its members. 

First, of the "return:'' Is it from the authorized source T Is it genuine T Is it sufficient in form and substance T ·was it obtained by 

fraud or duress f Of all these it is our right to judge. 

Secondly, "qualifications:" what are they f They are resifl ence, age, 

and nine years' citizenship, and they are nothing more. This is so stated by the Senator from Indiana, [Mr. MoRTON,] the Senator from 

Ohio, [1\Ir. THURMA.....~,] the Senator from Missouri., [Mr. ScHURZ;] but 

the Senator from Vermont, [Mr. MoRRILL,] some days ago read us a writt.en opinion, in which be says he is going to vote to declare that 

Mr. CALDWELL was not elected, because Mr. CALDWELL has not, ashe 

thinks, the" qualifications" of a Senator. 'l'o do the Senator from 

Vermont no injustice, I read from his opinion. He says: 

To assert that the Senate cannot judge of any qualifications save those particu- larly mentioned in the Constitution-of age and citizenship-would force the adIlli.ssion and retention of lnnatics and idiots. 

.1\fr. President, the choice of a lunatic to the Presidency of the United 

States, should it ever happen, may try the strength and flexibility of our Government. If men shall ever succeed in putting off upon the American people, a candidate for the Presidency insane before the election 

takes place, a serious juncture will be reached in the ·nation's life. 

Being elected, a madman could not take the oath of office ; he would 

have no legal will or mind. He could not resign the office. It was beld, in a learned and able opinion given by Mr. Cushing when Attorney-General, and has been generalJy accepted, that a lunatic, or one non compos, cannot resign au office. He could not sign laws, or veto 

them. He could not act. The House of Representatives could not 

impeach him, because insanity is not a crime or misdemeanor. It 

would be impossible to appoiut a regency, as England did for George 

III, because our Constitution knows no regency. The Constitution 

declares that-

. In case of the removal of the President from office, or of his death, resignation, or inability to discharge the powers and duties of the said office, the same shall de· 

volve on the Vice-President. 

Passion, folly, blindness, or concealment and imposition practiced 

npou the nation, may yet name a madman for the presidential chair ; 

and then shall be be seated, nnd who, with tho acquiescence of grappling parties ancl factions, shall settle all the questions to arise T 

But no such danger lies in wait for us. Under the power to expel, we can remove from the S~nate any member smitten with physical or moral infection, or who cannot or does not observe the rules of 

the Senate, and act as a member. A man who enters this body with 

delirium-tremens, constitutionally" qualified" though he be, is the 

subject of expulsion. He who comes with small-pox, he who comes a raving maniac or a driveling idiot, though elected and qualified, 

and because elected and qualified, and so a member of the Senate, may, 

with the concurrence of two-thirds, be expelled. And yet the Senator from Vermont is going to vote for the resolution to deny and 

unsay an election, grounding his vote upon the belief that Mr. CALDWELL is lacking in the" qualifications" of a Senator. 

Jacob Collamer, the predecessor of the Senator, standing just where 

I do now, delivered an argument not yet forgotten by those who 

heard it, vindicating the power of Congress to enact the "iron-clad 

oath." The purpose of his argument was to show that to prescribe an oath to be taken by Senators, was not torequireany "qualification," or to add a jot or tittle to the qualifications set down in the Constitution. It has always been admitted that if the test-oath could be 

deemed a qualification to be exacted of members of either llouse, it 

would conflict plainly with the Constitution. The only argument on which it stands is, that it imposes no qualification whatever. The 

honorable Senator from Ohio [.Mr. THURMAN] holds that the iron-clad 

oath violates the Constitution, and he will confirm me in saying that 

he so holds because he thinks it attempts to prescribe or add a qualification. He nods assent. Every lawyer will agree that the test-oath 

statute is void if it goes to the question, who is eligible to be electcu 

to a seat or to be returned to the Senate. 

It may have been forgotten that the late Senator from Illinois, the 

predecessor of my distinguished friend before me, [Mr. OGLESBY,] came ~ere followed by a protest, signed by nearly ha.lf tho legislature of 
124 CONGRESSIONAL RECORD. ~1.ARCH ID, 

the State, against his being admitted as a Senator, because Illinois 

had imbedded in its fundamental law that no man who bad been 

elected judge, should, during the judicial term, be chosen Senator, 

and that all votes given for him should be absolutely null and 

void. The Senate brushed aside the protest, because the Constitution of the United States, the sole authority, states the qualifications, 

and all the qualifications, to be exacted of a Senator. The same thing 

happened, I think, in the case of Mr. Doolittle, who came from the 

State of Wi cousin. Still, despite the indisputable reasons to the 

contrary, at least one Senator will, as he ileclares, vote for the pending resolution, upon the ground that Mr. CALDWELL, for deficiency in 

"qualification," iB not a member of the Senate. Such a vote will, perhaps, best accord with the challenge of the Senator from Ohio to so 

vote as to display courage. 

Thirdly, the Senate is the judge of the "election." What matters 

may this judgment embrace 'i Is there a State "in proper practical 

relations with the Union 'i" The latter words, are Mr. Lincoln's. Is 

there a legislature 'f This is one of the questions touching the cre- dentials from Louisiana, now lying on the table.. Wa.s the act done 7 

Was the choice made 'i And here we may inquire for fraud and 

duress. If, as the Senator from Indiana [:Mr. PRATT] suggested, a file 

of soldiers marched into the legislative hall in Kansas, and, at the 

point of the bayonet, demanded and coerced the election for :Mr. CALDWELL, I agree with him, we can inquire into it; and the fact being 

found, it would follow that no election took place; there was no act, 

because no consent and no will. I need not tell my friend from Indiana the difference between that case and one in which there was will and consent, and the act done, and nothing left to inquire about 

except the motive for the act. 

Mr. PRATT. \ViTI my friend from New York allow me to ask a 

single question 'i 

Mr. CONKLING. Certainly. 

Mr. PRATT. If the election is void in the case that I put, of violence of a squad of soldiers overruling the judgment and will of the 

members of the legislature, it is because their will was led astray by 

the employment of that violence. 

l\!r. CONKLING. I beg my friend's pardon; just there the road 

forks. It is void for a different reason. If my friend offers a deed in 

court, and I attack it by showing the signature to be the signature of a raving madman-mad when he signed it-will the Senator say that 

the court should decide the deed void or voidable because the will of 

the grantor was led astray'f No, sir; the court would avoid it because 

the grantor had no will to be led astray. Will the Senator say if the man who signed the deed was under the influence of chloroform or drink, if something had been pot into his mouth which took away 

his brains, and he knew not what he did, that the act would be avoided 

because his will was led astray Y It would be void because no will was exerted. So, when my friend puts the case of a man, upon pain 

of death, casting a vote or signing a deed with a halter round his 

neck, or a dagger at his brea.st, or a pistol at his head, the act is void; 

the surrender by my friend of his money to a foot-pad or a robber, 

who demands it revolver in hand, iB void in law, not because his will 

is led astray, but because he gives up his will to save biB life. In· such cases no alternative is presented to the mind; there is no free 

agency, no exercise of judgment, will, or choice; there can be none. Volition is wholly absent, and thfl act is in law and in reason not done. 

In exploring the legality of the action of the legislature, we may 

inquire, did intruders and usurpers participate and control the election Y If intruders acted under color of membership, the Senator 

from Indiana and the Senator from Ohio hold that we cannot inquire 

into it, no matter how bald or brazen their pretension. How, Mr. 

President, can this right to inquire be denied upon the argument of 

this report T I read from· the speech of the Senator from Indiana: 

The Senate has no power to inquire whether individual members of the legisla- ture ha.\'e been lawfully elected, because each house of the legislature is invested w1th like power to judge of the elections ancl qualitications of its own members. 

The Senate has no power, he says, because the State leiislature has 

the power! Is that the reason ¥ Is concurrent jurisdiction impossible T 

Our jurisprudence is full of instances of concurrent jurisdiction between the General Government and the States; the fact that the States 

may do a thing, ipso facto proves nothing against the right of the Federal authority t.o do it also. Take counterfeiting the coin: ha.s not the 

State of Indiana power to punish it; ha.s not the United States the 

power also¥ This argument will not do. The State may punish l\!r. 

CALDWELL for the acts charged against him now, but it does not follow 

tba,t our right to deal with him is thereby lessened. 

Suppose the State legislature does not and will not inquire who 

participates in its proceedings, enough members being bribed torefuse inquiry, although they know that seats are held upon forged certificates or upon no certificates at all, and suppose the man sent here 

by such a legislature were waist-deep in the proceeding, we cannot, we are told, inquire and judge the election void, though twenty men took part, with no more right to do so than you, sir, have to occupy the Briti~:~h throne. Why may we not inquire 'I Where is the authority for it f I asked the Senator from Ohio, and he replied that I knew as well as he. I ask again where is the authority holding that we may 

not inquire whether intruders sat in the legislature of Kansas, and 

dominated and debauched itT I, too, must admit that we cannot inquire of the intruders seated under color of membership; but I admit 

it only in submission to rea.sons and principles equally fatal to the ac- tion proposed in: the present case. Wh.'tt authority says that_ we may 

not inquire into the membership of the legislature, and yet says that we may inquire whether members of the legislature were influenced 

by one motive or another¥ Show me authority for one, and I will show 

you authority for the other. 

In the recorded sayings of those who have treated these subjects, we find cla.ssified together in the same breath, as identical in the rules 

which govern them and pla.ce them beyond our reach, the tenure by 

which the individuals composing a legislature hold their seats, and 

the motive, pure or impure, by which they are influenced. Whoever 

insists upon these autbqrities, must accept them as they are, and as they weave together in one web the limitations they impose. If we regard these teachings, the right of a member of a legislature to vote, 

and his reason for voting, are alike sealed books to us. Dismissing 

the authorities, if we admit that we may go into the legislature of a State, and ask whether one man voted from passion, another from 

hope, and a thircl for gain, why may we not ask also whether other men in the same legislature who cast the die of the election, sat 

there with no semblance of right, mere shameless preteuders and 

usurpers¥ If one chosen to the Senate, bribed ten members of the 

legislature to absent themselves and allow intruders to sit in their 

seats and wield their powers; if he also bribed yet other member~ 

to refuse to inquire into this wrong, and thus won his electiou, we are told we must accept all this; we cannot enter the sacred portals, 

because we cannot pass the boundary between State and Federal 

power. Is this reason, or is it sophistry¥ 

But when we enter the labyrinth of motive, with its whited sepulchers, its blasted effigies, its false inscriptions, its backward footprints, its solemn mockeries, its weird glamour-what Ariadne shaH 

give us the clew 7 Motive I Will mistake or surprise do 'f A can- didate is pledged to be a tariff man in a State where the tariff question overtops all others; he iB elected upon a direct promise given 

to the members who vote for him that he will favor a high protective tariff in every emergency; being elected, he throwa off the 

mask, and reveals himself as an open free-trader. Will that avoid 

his election t A candidate is represented to be safe, sensible, and 

wise, but after tha election it turns out that he was incurably insane, and known to be so by those who for pay and promise of office 

urged members to vote for him; is be not elected if he receive~he 

requisite votes 'I Suppose a candidate at heart a traitor, and there are traitors in the legislature, and they plot together that, when 

elected Senator, he shall assa.ssinate the President and blow up tho 

Capitol, with all its statues and unique treasures of art, and he is 

elected because of this conspiracy, would his election dissolve when looked at by the Senate, or must we deal with him, if at all, under our power to expel a member! · " The will of the member must be corrupted," we are told. Let us see. If a member is threatened with revenge or ruin, and his 

vote is so controlled, will that doT If a n.ortgage or judgment is 

brandished over him, until he sees bankruptcy for himself and starvation for his family, will that "corrupt his will,'' or will he still be an anointed free agent, exercising the delegated power of his State, 

whose vote iB conclusive upon us f Lenity upon a debt is promised, 

when lenity upon a debt may be the difference l>etween prosperity 

and ruin. A note is indorsed, or a loan of money made ; will these 

"corrupt the will Y" A man seeking votes for the Senate, hints darkly 

to a member of the legislature some secret of ·his family, something 

which would mildew the reputation of the living and murder the mem- ory of the dead, and the member says, "I dare not brave you; I 

would rather surrender my preference than that yon should soil my 

name;" would such an approach "corrupt his will f" A man seeking 

his vote, threatens to contest a member's seat, to charge him with 

bribery, and to disgrace him, unless he gives him his suffrage; would 

that "corrupt the will T" A candidate who has established a news- paper-and we are told it is proper for even an unfit candidate to 

pay $5,000 to a newspaper to m~gni[Y. and puff hi~-a candidate, 

with a newspaper or newspapers 1n h1s mterest, promises a member to write him up and make him famous and immortal, or threatens to 

write him down and blast his character-to procure newspaper cor- respondents to associate him with crimes of which he never heard, 

and the member says," Rather than face a hurricane of filth, rather 

than such a storm should whelm me, I will vote ;" would that "corrupt his will!" Hope of advantage in politics) or business, or matrimony ; hope of get~g a bill through Congress, or a pension, or an appropriation for the improvement of a harbor; would these "cormpt 

the will 'I" Log-rolling, as it has come to be called, a proceeding iu 

which a member of the legislature might say to another,'' I will vote for your candidate for Senator, if you will vote for my bill;" would 

that "corrupt the will f" 

In all these instances, if we go to the root of the question, the will 

is controlled, the mind is warped, the consent is trammeled, the vote 

is captured, the point is gained, as much as if so many pieces·of silver 

were counted down. 

Such causes, operating upon the mind, are as many as the leaves of 

the forest or the sands of the sea. Which of tbem is worse 'I In each 

instance the member would vote selfishly ; but the measure of his 

fault, is known only to the absolute intelligence, which, penetrating 

the sordid heart of man, can analyze that black drop there lockell 

up, called Motive. 

To see a subject thoroughly, it must be turned in different lights. 

Let me present in another aspect the question whether the legislature 

. of Kansas elected ALEXANDER CALDWELL. 
1873. CONGRESSIONAL RECORD. 125 

Suppose an act of Congress forfeited an election to the Senate procured by bribery, and punished for felony whoever should obtain an election by bribing members of a legislature. Should Mr. CALDWELL 

be indicted under such a statute, it must be alleged in the indictment, 

an(l proved on the trial, that his election did take place, and was so procured a.nd brought about. ,In such a ca~e, no counsel would trifle 

with the court ·by saying his client must be acquitted because there was no election or only a null election. Yet here we sit~ hesitating 

whether in truth the historical event has happened which would be 

the very foundation of the indictment under the statute I ha\e supposed. 

But another puzzle is given us. The House, in judging of elections, 

throws out bribed votes, and its power to judge is in the same clause 

of the Constitution with ours; trrgo, both Houses must judge by 

the same ·modes and to the same extent. The pioneer in this 

doctrine is the honorable Senator from Georgia, [Mr. NORWOOD.] 

Two Senators have adopted it in debate, but iu the "views of the 

minority" in the case of Mr. CLAYTON, it appears first. Let us consider it. Suppose the Supreme Court had been charged by the 

Constitution to jud~e, in respect both of the Senate and the House, of 

the elections, qualifications, and returns of members; it would not 

be argued that in each Honse the judgment must be by the same rules; it would be plain that each House must be judged by the 

rules applicable to that one. Suppose in this same clause of the 

Constitution the Supreme Court had been empowered to judge of 

the appointment, qualifications, and commissions of its owu mem- bers ; surely the court could not judge by the same methods and to 

the same extent as the Honse of Representatives. Suppose, using 

the very words of the Constitution, you give power to the Regents 

of the Smithsonian Institution to judge of the election of members 

of that board ; they could not proceed as the House proceeds. The 

power to judge given by the Constitution is attributed to each Honse 

11mtatis mutandis. Do lawyers doubt this 7 It is attributed to each 

House for the use of each House, taking into account the difference 

inherent in the two Houses, and in the thing they have to do. 

Were this otherwise, tho result would be an absurdity. It is not 

possible to assimilate or identify our province of judging with that 

of the House. The House inquires, first, were the· officers of election 

legally authorized and qualified t This is the very first inquiry addressing itself to the House. Secondly, were those who voted legally 

authorized and qualified t Both these things, we are told by the ad va- cates of the pending resolution, we cannot do. These are tlle very things we may not do. First, we cannot inquire whether the presiding officers 

who conducted the election in the legislature, were legally elected or empowered; we are est-opped to so inquire; and, secondly, we cannot 

inquire whether the men who voted, were verily members or voters. 

The House inquires, were those who voted residents; were they citizens; if claiming to be naturalized, were their naturalization-papers 

fraudulent or forged; were they emitted the day before the election 

and stained with the color of age from the dregs of a coffee-pot, a~ 

thousands of naturalization-certificates have been; were those who 

voted twenty-one years of age; were they registered t Such are the 

inquiries in the House, where an entire poll may be thrown out, or a 

poll may be sifted to find, in the case of each individual elector, was he qualified and entitled to vote. When my friend from Maryland 

[Mr. liA?.IILTON] yesterday, by a short, jerky question, staggered 

the argument of the Senator from Ohio, [Mr. THURMAN,] the Senator 

from Indiana came to the rescue with a suggestion. He said the Constitution requires that electors for Representatives in Congress shall 

have the qualifications of electors of the most numerous branch of 

the legislature in the State; and, therefore, as I understood him, (the r emarks do not appear in the RECORD this morning,) the conclusion 

is, that the House may inquire into the qua1ifications of electors voting for its members, because the Constitution says that certain qualifications may be reqnired. I thank the Senator for this contribution. 

It proves all I am arguin~ at this point, namely, that, by the mandate 

of the Constitution, the House, in judging of the election of its mem- bers, proceeds to inquire of matters touching which we are con- fessedly estopped. We need hardly go further for answers to the 

argument that the power to judge, being conferred on the House and on the Senate in one and the same clause, it must, therefore, be in 

each House a power identical in its methods, its applications, its objects, and its results. 

Then, again, we are told that" fraud vitiates everything," and therefore we may undo corrupt elections. As a popular saying, this trite 

maxim is of some value; as a legal saying, it is far from accurate. Another well-worn saying is, that ''a pint is a pound, the world around." 

It depends, however, upon the kind of pint, and it depends upon the 

kind of fraud, and npon other circumstances. As an offset to this 

maxim, I offer another: Fraud vitiates nothing, except in the forum 

and in the proceeding in which it can legally be tried. Inability to 

right a wrong in a particular way, may be deplorable, but, if it can be righted in another way, the case is not so bad after all. 

My honorable friend from Vermont, [Mr. MORRILL,] gloomy in his 

views of this case, as I must think he is peculiar, says: 

By our action we must either disapprove or approve of the means by which Mr. 

CALDWELL secured his election, and, as I am nnable to do the latter, I shall briefly gi.-e the reasons that will govern my vote. . 

So ppose :Mr. CALDWELL were charged with murder or arson, and we were asked upon that ground to decide that no election took place in 

Kansas, could we not refuse so to decide without approving murder or 

arson f Suppose Mr. CALDWELL offered many bribes to members, and 

they were all spurned, it would hardly be said that the election was void, and yet, if we refused to say so, the Senator from Vermont might warn us that we were approving of offers to bribe. 

Mr. President, I believe the Senate to be weary; I am not weary ; 

and I should be glad, could I expect attention, to present some other urguments in this case. 

Mr. STEW .ART. Would the Senat-or prefer an adjournment at this 

time, so that he may continue his argument to-morrow t 

Mr. CONKLING. I will abide the pleasure of the Senate-glad to 

proceed, or willing to adjourn. 

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

The motion was agreed to. 

EXECUTIVE SESSIOX. 

The Senate proceeded to the consideration of executive business. 

.After fifteen minutes spent in executive session, the doors were re- opened; and the Senate (at four o'clock and thirty-fivo minutes p.m.) 

adjourned. 

IN THE SENATE. 

THURSDAY, March 201 1873. 

Prayer by Rev. J. P. NEWMAN, D. D. 

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

PRINTING OF DOCUMEI\TTS FOR THE SENATE. 

Mr . .Al..TTHONY. I desire to offer a resolution. I do not know bnt 

the latter clause of it may come under the objection raised by the 

Senator from Connecticut, [Mr. FERRY,] and if so I will not press that 

part of it. It is a resolution that will cause no expense and no sitting 

during the recess, but will give us some information valuable for us to have, and will enable us to get it more easily, if we adopt it under 

the authority of the Senate, inasmuch as it must be done by a subordinate officer and cannot be done by a committee, than if it is merely 

applied for by the committee. 

The resolution was read, as follows : 

Resolved, That the Committee on Printing be inl!tructed to inquire into the num- bers of bills, reports, and public documents printed for the use of the Senate, and 

their distribution, and to report what changes, if any, are necessary; also, into the 

practicability of supplying the public with tbese publications at their cost, with the 

addition of the postage to be paid upon them; and to report on the same. 

Mr . .ANTHONY. I do not know but that the latter clause may fall 

within the ruling of the Chair. If so I will withdraw it. 

:Mr. FERRY, of Connecticut. I think the Senator had better withdraw that portion of it. 

Mr . .ANTHONY. Very well. The Senator has no objection to the 

first part. 

Mr. FERRY, of Connecticut. No, sir. 

Mr. ANTHONY. I modify the resolution by striking out the latter 

part of it, beginning with the word" also." 

The VICE-PRESIDENT. The Senator from Rhode Island modifies 

his resolution. The Secretary will report it as modified. 

The chief clerk read a~ follows : 

R~>.solved, That the Committee on Printing be instructed to inquire into the num- bers of bills, reports, and public documents printed for the use of the Senate, and 

their distribution, and to report what changes, if any, are necessary. 

The resolution was considered by unanimous consent and agreed to. 

HOUR OF MEETING. 

:Mr . .ANTHONY. I move that the daily hour of meeting of the 

Senate be eleven o'clock a.m., until otherwise ordered. 

Mr. SHERMAN. Say ten o'clock. 

Mr. ANTHONY. I accept that, if it is agreeable to the Senate. I 

will say ten o'clock, if the Senator from Ohio prefers. 

Mr. SHERMAN. We want to get through with business as soon as possible. · 

Mr. CARPENTER. Say half past ten. 

1\Ir. ANTHONY. It is suggested that the hour of meeting be fixed 

at half past ten. I accept that. I want to be agreeable to all Senators, if I can. The VICE-PRESIDENT. The Senator from Rhode Island modifies 

his motion so as to make the hour of daily meeting ten o'clock and 

thirty minutes a. m. The question is on the motion as modified. 

The motion was agreed to. 

RULES LIMITL"{G DEBATE. 

The VICE-PRESIDENT. If there be no further resolutions, the 

Chair will call up the unfinished business of yesterday, upon which 

the Senator from New York [Mr. CoNKLING] is entitled to the floor. 

1\Ir. WRIGHT. · In the absence of the Senator from New York, who 

is not in his place, I offer the following additions to the rules of the 

Senate, and ask that they be printed and referred to the Committee 

on Rules: 

Ruolved, That the following be added to the rules of the Senate: 

RULE-. No debate shall be in order unless it relate to or be pertinent to tho 

question before the Senate. RULE-. Debate may be closed at a.ny time upon any bill or measure, by the 

order of two-thirds of the Senators present, after notice of twenty-four hours to th~t effect. RULE-• .All bills shall be placed upon the calendar in tboir ordsr, and shall lJe