154 CONGRESSIONAL RECORD. MARCH 22, 

Suppose Mr. CALDWELL were to be tried in Kansas on this testimony. I venture to say that you could not get one man out of any 

twelve jurymen in Kansas, of either party, to convict him. I caught 

the key-note of this proceeding in the testimony of a democrat who 

testified before this cummittee. His name is Fenlon. He was a mem- ber of the legislature of Kansas which elected Mr. CALDWELL, and he 

is the bright particular star in this proceeding. He throws a great 

deal oflight on the way things were done there. He did not have 

anything to do with the use of money himself, but he throws agreat 

deal of light on the politics of Kansas. He does not; appear to think 

that CALDWELL was a very bad man, but rather a pretty good fellow; and the committee admit that Mr. Fenlon was a very good 

man, and he appears excellently in the testimony . . So I will take a democrat, I will take 11fr. Fenlon as a sample, and I am willing to 

take a jur.v of all democrats, and let them ha.ve before them all these 

witnesses in Kansas on a prosecution for bribery, and then if Mr. 

CALDWELL be convicted of any offense, I will vote for his expulsion. 

I will be satisfied with that verdict. I will be sa.tisfied with the 

rnle of evidence administered by a conrt under such circumstances, 

and will acknowledge that justice has been done. But I do not believe this report throws any light on the subject. 

I know we are told that Senn,tors go before these committees voluntarily, but how do they come outf After they have been cross- examined what becomes of them; what kind of trin,l do they have f 

Here I n,m reminded of the fate of a Senator who recently sa.t with us. Injustice! cannot help referring to him-a. gentleman who went before an investigating committee of the Senate at t.be last session. I do not 

pretend to say anything about the report of that committee; but here was a man who had bome a good name all his life, who never had 

handled money, who never had anything said a.gainst him, but he wa8 

accused of dealing in Credit Mobilier stock, and hG went before a com- mittee of the Senate, and was so overcome by the situation that he 

could not tell a story which would correspond with that told by others. 

The committee sympathized with him, were sorry for him, but he was so perfectly overcome at being charged with an offense that be did not 

know what to do. I have read through and through the testimony 

taken by the committee in the case to which I refer, and it showR tha.t 

that man could not make any statement at aU. He had no rights 

there. That was not a fair triaL Yon have never given him any 

hearing, and yet ~hat committee proposed to expel him. 

Mr. MORRILL, of Maine. I cannot let \vhat my friend has just said ~taod without some notice. · Mr. STEW ART. I am not reflecting on the committee. 

Mr. MORRILL, of Maine. What caae does the Senator refer to f 

Mr. STEWART. The case of Stmator Patterson, of New Hampshire. I say he went before the committee, and was so overcome by 

the situation that be could not tell two stories alike. 

Mr. MORRILL, of Maine. Why is it necessary for the Senator to 

apologize for more than one caee at the same time f 

Mr. STEW A.RT. I am not apologizing for it at all, but the Senator 

from Indiana recommends that CALDWELL should be put upon the 

rack in this particular case, and that is the way to do it. Now, I 

think Mr. Patterson was a very great fool for making any statement 

at all about that transaction. There is a principle involved in this. 

Men have confessed murders that they never committed. Men have 

been executed for murders they never committed, on their own con- fession. Why, sir, a case occurred not very many years ago where two 

persons were convicted of the murder of a man on their own confessions who finally turned np alive. Now, courts refuse to convict for a murder on a confession, until the homicide is proved. Most men, 

particnlady one that has not been accustomed to such a iituation, 

when put on the stand, accused of crime, and questions are put to 

them, are not competent to speak in their own behalf. The law so declares, and there is no place where the common law is administered 

where such a practice would be tolerated. There is no place where 

the common law is administered where yon can put a man upon the 

stn.nd and take advantage of the tryinO' circumstances under which 

he is placed to extort a confession. Confessions voluntarily made . by men under such circumstances have turned out to be untrue, until 

there is but little faith put in them. 

I say, therefore, there is no force in the suggestion that CALDWELL 

should have been put on the stand, and should have been pnt to the 

ordeal of accounting for all the sums of money that he and everybody else drew, and then, of course, if he bad failed to account for 

the money that Crozier drew, or that Dr. Morris drew, or that anybody else drew, he would be held guilty, and that would be conclusive evidence of his guilt. That would be a good deal like the rules 

of evidence that were adopted in ancient times with the witches. 

They were put in the river, and if they swam-Jhey were guilty and 

had ·to be banged, but if they sank and were drowned they were innocent. So you would put CALDWELL on the stand, interrogate him, 

and make him account for all the money that he may have used 

about a certain time, and he would have the same chance that a witch would have under the old practice. 

If you seek to raise the presumption against this man because he was not sworn, let me remind yon tha.t yon have had Senators here 

who have rebelled against being sworn when they were called upon as 

witnesses; and it is very questionable whether it is the proper proceeding to swear a Senator. That bas been demurred to by old Senators 

in this body, some of them within the last year. Hut, sir, at any mte I 

say that no inference unfavorable can be drawn to :Mr. CALDWELL IJecause his statement in answer to these charges i made on the honor 

of a Senator; it traverses overy allegation; n.nd hi c!Jaracttr u;;,-

fore was good and bas since been good, while his· accusers are as a body engaged in extracting money from hip-~, ancl tlllly admit tlw,t 

to be tlleir object. No charge of bribery is proved against. him, nor ls it proved that he was connected with any specific case of bribery. 

There may have been general bribery ont of doors there, bnt. it was not brought home to him. 

Mr. President, I shall not longer detain the Senate. I am obliged 

to the body for the attention which it has given to my remarks. 

1\Ir. FERRY, of Connecticut. I have soruethiug to say on this subject, Mr. President, but I do not desire to go on to-night. 

Mr. SHERMAN. If the Senator from Conn ct.icnt will yield, I 

desire to move an executive session. 

Mr. CARPENTER. Will not the Senator let us move an adjourumentovertoMondayfirstf ["No!" "No!"] 

Mr. SHERMAN. Let us go into executive session. There i somo business we ought to do in executive session. I move that the Senate proceed to the consideration of executive business. 

The motion was agreed to; and the Senate proceeded to the consideration of executive bUI'>iness. 

After forty-five minutes spent in executive session tho doors were re-opened; and (a.t five o'clock and five minutes p.m.) the Senate 

adjourned. 

IN THE SENATE. 

SATURDAY, Mm·clt 22, 1873. 

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

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

WITHDRAWAL 0.1!' PAPERS. 

On motion of Mr. DORSEY, it was 

fr~~h!~;!-' h~l ~eBs~::.an have leave to withdraw his petition and papers 

ELECTION OF SENATOR CALDWELL. 

The VICE-PRESIDENT. Resolutions are now in order. If there 

be none, the ~enate will resume the consideration of the unfinished 

business of yet~terday. 

The Senate resumed the consideration of the following resolution, 

submitted by Mr. MoRTON on the 6th instant: 

Resolved, That ALEXANDER CALDWELl, was not duly anrlleJ?.ally elected to a seat in the Senate of the United States by the legislature of the State of Kansas. 

The pending question wa-s on the amendment of 1\fr. FEHRY, of 

Connecticut, which was to strike out all of the resolut.ion after the name "ALEXANDER C.ALDWEJ.L," and insert "be, and be hereby is, 

expelled from the Senate of the United States;" so that, if amended, 

the resolution would read: 

s!~f!v~f·tl:T?nft~~~e~~ CALDWELL be, and he hereby is, expelled from tho 

Mr. FERRY, of Connecticut. I should not be willing to proceed 

unless there should b~ a qnorum of the Senat-e present, and therefore I will yield the floor to any Senator who desires to speak-in the 

present condition of the Senate. 

Mr. FERRY, of Michigan. Mr. President, I should not now thus 

interrupt the course of this instructive debate but for the amendment 

offered by the Senator from Connecticut. I regret that he bns submitted his amendment of expulsion at this particular time in the 

determination of the whole ca-se. While I have not occupied the at4 

tention of the Senate during this discussion, I have, so far as I could, 

given close attention to the ten days' debate which has been so ably 

conducted, and which has shed so much light upon the novel question, now for the first time formally raised in the American Senate, 

whether bribery vitiates the election of a member of this body. H 

I have fairly apprehended the scope of this debate, it has aimed 

at and confined itself substantially to the question of the legality of 

the act of the legislature of Kansas by which .A.LEXAKDER CALDWELL 

holds a seat in the Senate of the United States. I am borne out in 

this by the scrupulousness with which Senat<~rs participa.trug in the 

discussion have so far avoided the question of expulsion in the submission of their views. It has also been disclosed in debate that the 

majority of the commiitee who reported the resolution were in doubt as to the proper method of disposing of this case. They chose the 

question of the validity of the election as the primary, if not proper 

one, upon which they would invite tlie· judgment of the Senate. To 

ma.ke sure of the one or the other, a member of the committee, the 

Senator from Mississippi, submitted a resolntion of expulsion, which 

at his instance was to serve as notice and be laid upon the table to 

await the determination of the Senate upon the first resolution, 

when that next should be considered. This appearing to be the loiYical order of consideration in committee, it would seem more in acco"i-d 

with their wishes and the logical sequence that tho Senate should 

pursue the same order in its consideration and determination. It 

would hardly ue just to the committee to treat it in any other order. 

The amendment of the Senator from Connecticut rovet·ses t:hh;, and 

compels the Senate to record its jnrlgment upon the q n ~:~tion of ;--.;-

pulsion before it can arljndge wbether Mr. CALDWELL is Ly elective 

right entitleU. to the seat he occupies. 
i873. CONGRESSIONAL RECORD. 155 

Mr. MORTON. If the Senator will allow me, I think it proper to 

say, as the chairman of the committee, that in my first speech in the 

introduction of thiB debate I did attempt to discuss the question of 

expulsion. The Senator may not regard it a-s a discussion, but at 

least I attempted to do so. I had occasion to state, I think more t.han 

once, in this chamber, that in committee I took the ground that the 

Senate had a choice of remedies; that I rather favored the one of ex- pulsion myself, but that a majority of the committee thought it should 

go to the election rather than to expulsion ; and that the action of 

the committee was controlled, at least in part, by two members of it 

who have since taken the ground upon the fioor of the Senate that it 

did not go to the election. 

Mr. FERRY, of Michigan. I was aware that tho chairman of the 

committee, in his opening remarks, covered the two questions of 

election and expulsion, and very wisely did so, in order to cover the 

whole ground in the opening of the debate. In my judgment, it be- came his duty to do so. But I was speaking of the action of the 

chairman as reflecting the opinion of the maJority of the committee, 

iu reporting a resolution questioning the validity of the election, and 

could not with propriety say, as I did not even know till the Senator 

has just disclosed, what his individual opinion was. Like reference 

had been made by Senators who have spoken of this, and I think the. 

Senator from Mississippi disclosed this view : that the two questions wore not only before the committee, but the committee seemed in 

doubt for awhile as to which should have priority. My simple object 

is to state faithfully and historically tho course this subject has pursued through the committee, and :finally reported to and now before 

the Senate in open debate. Let me now restate the point I was making when interrupted. The amendment of the Senator from 

Connecticut reverses this order of which I have spoken and contend 

for, and compels the Senate to record its judgment upon the question 

of expulsion, (and I speak merely by force of parliamentary rules, 

compelling the Senate, as it iB now presented before us and out of the 

hands of the committee,) before it can adjudge whether Mr. CALDWELL is by the action of the legislature of Kansas entitled to the 

seat he occupies. 'l'o require a vote first upon expulsion is to 

embarrass the Senate in expressing its conviction upon the distinction clearly made by the two resolutions. As I understand the ma- jority of the committee, they are in favor of declaring the election 

void, and the Senate refusing to so declare, they then favor the ex- pulsion of Mr. CALDWELL. The amendment of the Senator forces 

such of the committee, and others in accord with them, to tirst vote 

for expulsion, and thereby imply the validity of the election, for 

expelling a Senator presupposes his holding a valid seat. 

Mr. l!'ERRY, of Connecticut. You suppose, then, that the Senate 

cannot expel a Senator de facto ? 

Mr. FERRY, of .Michigan. Not at all; I am not stating my views 

upon the rights of expulsion, but my remark was that expulsion implies a seat duly held till lawfully questioned. I think before I am through the Senator will see that I do not expect or desire to avoid 

that que2tion, while at this stage of proceedings I do not express any 

jn<.lgment upon it. I am merely stating the nature, the sequence of 

the order in which the amendment of the Senator from Connecticut 

presents the question to the Senate, and consequently forcing the 

Senate to vote for expulsion, and to that extent implying t4at the 

Senator is he lding a valid seat. 

The amendment of the Senator is double-edged, and Senators who 

favor the validity of the election, and have not yet sufficiently con- sidered the question of expulsion, but may incline to favor it, are also 

compelled to record a negative of the one in order to reach a direct 

vote affirming the other. 

The pivotal idea upon which the whole debate has ranged has been 

the effect which bribery has upon the election of a Senator. It is due 

to the Senate and to the country that this debate should be allowed 

to crystallize into a vote upon the merits of the question. The gravity 

of the case demands that a precedent should be esta1llished by the 

solemn judgment of the Senate upon the simple question of the committee at issue, otherwise the debate is substantially a waste, so far as the 

recorded opinion of this body is concerned. What more opportune mo- ment could be afforded for thG dispassionate discharge of a constitutionaJ duty Y Although no advocate of the hackneyed shibboleth of 

"State rights," I do entertain due respect for State sovereignty, 

and believe now is the timefor the Senate to mark the boundary between FederaJ and State elective jurisdiction. Our associates over the way havu divided in the expression of their views, and thrown 

down the gauntlet for equal abandonment of political affiliations on this side of the chamber in the determination of a high constitutional 

question. Partisan strife is wholly at rest. Survey the national horizon, and not a speck as big as a man's hand indicat-es the approach, 

much less prevalence, of political antagonisrus. The heat and criminations of party zeal have subsided into the cool anu respectful amen- ities of citizen fellowship. 

Is it not the time and place, and would we not be recreant to onr 

duty if we did not rise above the politician into the domain of official 

dignity to bail this auspicious occasion when we can pronounce the 

clear, enlightened judgment of the statesman in the exalted forum 

of the American Senate 

It is for this object, Mr. President, that I propose an amendment to 

that of the Senator from Connecticut. While iu nowise committing 

myself in advance upon the merits of either resolution, but biding the 

time when my votes sllall express my judgment, I shallt;>trive to approach each with that respect which is due to State action and to the 

conduct of an associate whose two years' acquaintance here ha-s shown no act unbecoming a gentleman, and, in the Jight of this, cast first 

my judicial decision upon the validity of an election of a United States 

Senator questioned by alleged bribery, and next upon the resolution 

of expulsion, which I am prepared to meet unmoved by sympathy 

and with rigid regard for the exactions of my constitutional oath. 

I now offer my amendment to the amendment of the Senator from 

Connecticut. 

The CHIEF CLERK. The amendment to the resolution is in the following words : 

Strike out all after "CALDWELL" in the original resolution, and insert" be, and he 

hereby is, expelled from the Senate of the United States." 

·-.It is proposed to amend that amendment by striking out the words 

"expelled from the Senate of the United States," and inserting "declared to have been elected a Senator of the United States by t,he 

legislatme of the State of Kansas;" so that the amendment, if 

amended, will read, "be, and he hereby is, declared to have been 

elected a Senator of the United States by the legislature of the State 

of Kansas." 

Mr. MORTON. Is that amendment in orded 

The VICE-PRESIDENT. The Chair thinks it is in order. 

Mr. ALCORN. I do not understand that the Senator desires to 

submit the motion at present. 

Mr. FERRY, of Michigan. I ask no action upon it now, but I want 

it to take its place, of course. The VICE-PRESIDENT.~ The question before the Senate now is on the amendment proposed by the Senator from .Michigan to the 

amendment of the Senator from Connecticut. 

Mr. ALCORN. I understand the Senator from Connecticut [Mr. 

FERRY] is entitled to the :floor, and I yield to him if he desires to proceed now. If not, I have a few remarks to offer, and will then yield 

tho fioor to him. 

Mr. FERRY, of Connecticut. I yield to the Senator from Mississippi to enable him to make his remarks. 

Mr. ALCORN. Mr. President, the argument offered on the part of 

the defense rests the demurrer to the jurisdiction of the Senate in 

considering the resolution of the committee on false issues. Britif>ll 

law and British precedent having nothing whatever to do in tile 

question, I am glad to observe that the Senate has settled down to 

its consideration as, what it really and only is, a question of the Constitution. 

In rising to add to my former argument on the question of juriRdiction, I shall confine myself mainly to points raised on tho side of 

Mr. CALDWELL. 

Because the legislature is a competent political power in the election 

of a Senator, it· is claimed t.hat its act is in that case final. If this means competence to the extent of exclusiveness, the proposition 

simply begs the question, aud is not entitled to consideration. But 

the Constitution makes the act of election subject to the review of a, 

judge, and be the scope of the review ever so nanow, that which is 

subject to review cannot be said to be in its nature final. Not only 

is the election of a Senator by a legislature not necessarily final, but I 

contend that, outside of acts proper to its own government, a legislature, save by a two-thirds vote, is in fact incapable under our system 

of any act that can be said to be final. 

The analogies drawn from an act of legislation to an act of election 

by a legislature proceed, I submit, in violation of fundamental differences in the two things. Legislation, involving a concurrence of 

two branches of the State government, is an expression of the sover- eign will; the·election of a Senator, being the act of the legislature 

only, is clearly inferior in dignity, an act of but a part of the sovereignty. 

But the election of Senator may be seen not to be an act of the 

sovereignty on other grounds than its want of the concurrence of the 

State executive. The sovereignty of the State is never expressed. by 

the legislature under our system, save when, a-s in the case of over- riding a veto, impeaching a governor, it speaks by special authority 

of its constitution in a vote of two-th.iJ:ds. In no other form is the 

authority of a legislature sovereign. In legislative action which is 

valid under a simple majority, the legislature, unlike a constitutional 

convention, exercises but a portion of the sovereignty of the State, 

and in the case of the eJection of a Senator does so (as in legislation 

it does in reference to the governor) subject, within the limits of con- stitutional intention, to the assent of this Senate. 

The election of a Senator differs from legislation in form and es- sence. Carried out under the regulation of the Federal Government, 

and subject to the review-formal or otherwise-of this Senate, it is, in 

fact, an act of subordination. A.s an original act it differs from the 

election of members of Congress in only one re.spect:-the immediate 

constituency. The people of all the congressional districts of a State 

exercise in the election of their delegation to the House of Representatives an aggregate power, less in no essential of sovereignty than 

that exercised by their legislature in the election of Senators. An<.l 

this is not all. In a State admitted under an apportionment giving 

it only one member of Congress, the election of that member might 

be held, because of the direct action of the people and of the great r expenuiture of sovereign power involved in that actiou, t.o have ou- taiued even a higher sanction than the election by the legislature of one of two Senators. I do not assert, however, that tho oue act is highor than the other. Ta.kiug them, as I <.lo, at their level in the Cou · 
156 CONGRESSIONAL RECORD. ~lARCH 22, 

stitution, I hold them equal. For the text of that instrument leaves me no room for any other opinion when it places these two classes of 

election on the same footing, by conveying the control of each House over its own clas::. in precisely the same terms. 

The presidential elector bas been cited as constituting an analogy 

apposite in the election of a Senator. This confounds radical distinctions that separate the two cases. The elector is appointed by the 

State superior to Federal intervention; the Senator is chosen subject 

to the regnlation of the Federal power and to the acquiescence of the 

Senate. The elector is essentially an agent of the State, who never comes in contact with Federal authority; the Senator is essentially an agent of the United States, a very constituent part of the Federal 

authority. Over the creation and the subsequent existence of the 

Senator, Federal power has spPdfic rights; over the creation and 

subsequent existence of the elector, Federal power is absolut.ely impotent. To reason from the one to the ot.her of these is, I repeat, to 

ignore essential differences i:1 the nature of things. 

A Senator objects to the power of the Senate to go into judgment on elections, because of his declaration that it is not a body competent 

to try questions of law and fact. Bnt the Constitution holds the 

contrary, for it declares the Sena.t.e competent to try these questions 

when giving it power to try impeachment. If this body can fip.d on fact and law a a conrt of impeachment, I am really at a loss to un- derstand why it cannot do so as the judge of certain elections. But 

competent or not competent is, after all, a question of the intention of 

the Constitution, and to reason from allegations of our competence or incompetence against that intention is something like reasoning 

in a circle. 

The right of the legislature to "choose" is pleaded in bar of the 

right of the Senate to "judge." And yet the 1;wo rights are granted 

in the Constitution concurrently. I am, therefore, not free to hold that 

the oxercise of the one, however it may modify the exercise of the other, 

must exclude that exercise. It is said in specific terms that we are "not the judges of the election." I submit in answer a certain text 

of the Constitution which declare.~ expressly that we are. "It is not our business," we are told, "to inquire whethe-r this gentleman cor- rupted the legislature of his F3tate." This appears to me to be what 

the logicians define as "proving too much, and therefore nothing." 

The deniaJ of our right to inquire into that corruption on the part of 

Mr. CALDWELL goes beyond the ground taken by any Senator as to 

our abst.ract powers; for it precludes all purging of the Senate 

from contempt in such cases, by cutting us off from grounds for the 

proper exercise of even our powers for expulsion. If we have no right to inquire, we have no right to punish. But even though this 

denial of our right to inquire be good, it is, I submit, offered now too 

]ate. We hat•e inquired, and the question before us is simply as to the 

action to be taken on the result of the inquiry. 

In trying this election of Mr. CALDWELL, it ha.s been objected that we try the legislature which he has corrupted. I could h ardly suppose au answer necessary in the case of the special plea against tha 

jurisdiction of a court that the prosecution of the seducer amounts to a prosecution of the seduced! We have nothing whatever to do or to say in the case before us as to the persons, motives, or le~al com- petence of the electors who have sent here Mr. CALDWELL. With the 

presence of t.hat gentleman among us our jurisdiction in this case begins and ends; and the exercise of that authority does not only not 

go to a trial of the legislature of Kansas, but it does not go to a trial 

of even Mr. CALDWELL, save only to the extent of his right to a seat 

in this body. 

Of the several precedents cit.ed in this discussion, but one appears 

to me to be pertinent. The report on the case from Rhode Island pre- . sents au opinion that bears directly on the question at issue here. An 

incidental statement, however, as that only point of analogy in all 

the cases adduced really is, it is therefore wanting in the form and essence of that direct enunciation of thou~ht which constitutes a fundamental condition of authority in precedent. I leave that discursi>e reference as to the right of the Senate in questions of bribery 

at whatever it may be held by the judgment and conscience of Senators. · The precedent from Pennsylvania has, I submit, no bearing on the 

question before us. It dealR with charges of bribery made by some me~b~rs of the. legislature; .and does so by referring the charges for 

prelimrnary action to the legislature. We are called to act under circumstances radically different. The case before us has not been urged 

upon us by a few members of the legislature; it ha.s been presented 

to us in due form by the electing body. It bas passed still more com- pletely outside the scope of that precedent; under the direction of 

the Senate itself the subject has come up in the imposing form of ac- cusations made by a committee of the Senate. 

The precedent · from New Jersey turns on the question whether an 

election by a plurality with the consent of the majority was valid. 

\Vhile this has no special relation to the question at issue here, it is ~ood for the general conclusion that the Senate has a right to uo, in 

tssues as to the manner of election, behind the certificate and th~ fact 

of election. 

The case from Iowa applies to au election in which the two houses 

of the legislature came together without due regard to the formulary 

prescribed for their joint meeting. While this has no particular bearing on the question before us, it bears directly on the general right of 

the Senate to go, as to the manner of election, behind the certificate 

and the fact of election. 

The case from Florida decides whether an election by tweut.y-ni ne specific votes in the face of twenty-nine blank votes consti tntcs a choice. This has a direct and important bearing on the case before 

us, t.hough not at all in a sense adverse to our jurisdiction. It is a precedent that goes beyond the form of the election to its ess"';we, 

and is direct authority for the constitutional rendering that gi v&; the 

Senate the right to go behind the certificate and fact of election to 

the question of its essence-the question of choice. 

But it has been said justly that, in interprt}ting the intention of the 

Constitution when it makes the Senate the judge of certain election·, we must do so under the light of the context. The context is mediate and immediate. The latter ~:;tands thus: 

Each House shall be the judge of the elections, returns, and qualificn.tion of its own members. 

This gives the Senate distinct functions as judge of elections other than those given it as judge of returns and qnalificat.ions. What are these distinct, these unspecified functions f I am a.t. a lo to even conceive what they can be if they must be held to exclude that e sen tial condition of auy judgment on elections-bribery. 

But the mediate context suggests limitations on tho right to jud~e 

in the correlative right to choose; and the precedent frow Flori <.Ia oe- clares that the Senate shaH see to it that the election shall be au act 

of choice. Now, does not this judgment as to t.be fact of choice go to 

the question of bribery f In the freedom of election snpposecl under our eystem of government, bribery is duress. And, iuasmuch <bS twentynine specific votes, in the face of twenty-nine blank vote , ciid not 

constitute a choice in the case of Mr. Yulee, how much more positively 

may it be declared that (the general fact of bribery placiug in evidence the general fact of duress) the bribery in the case of .Mr. CAt,oWELL, if established, excludes him from all rights under the aut.hority 

given by the Constitution to the legislature of Kansas to "elect," to 

"choose," members of this Senate. 

Mr. FERRY, of Connecticut. Mr. Presidept, the Committee on 

Privileges and Elections report a. resolutionThat .A.LEXA:SUElt CALDWELL was not duly and le~rally elected to a seat. in the 

Senate of the Unit d States by the legislature of the State of Kansas. 

I yesterday offered an amendment to the resolution of the committee which, if adopted, will cause thA resolution to read: 

That A.LEXANIJER CALDWELL be, and he hereby is, expelled from the Senate of 

the United States. 

This morning the Senator from Michigan [Mr. FERRY] proposes an amendment to the amendment, which, if adopted, will cause the resolution to read: 

That .A.L£XA~'"DKR CA.LDWl!:LL was duly elected a Senator of the United States 

from the State of Kansas. 

J.believe that is it substantially. 

Mr. FERRY, of Michigan. Not strictly so. Mr. I<'ERRY, of Connecticut. Let it be read l.Jy the Secret.ary. 

The CmKF CLERK. The ameudment to the amendment is to insert 

the words: 

Declared to have been elected a Senator of the United States by the legislature 

of the State of Kansas. 

Mr. FERRY, of Connecticut. I shall reserve what I have to say 

upon the amendment proposed by the Senator from Michigan until a later portion of my remarks. In the remarks which that Senator 

made, he deprecated the introduction of my amendment, and it is, 

therefore, perhaps proper that I should in the outset explain the reasons why that amendment seemed to me to be necessary, and its 

adoption due to the people of the country and to the Senate itself. 

Mr. FERRY, of Michigan. Will the Senator allow me just onemo- ment, as I wish to be placed 'right, to say that I deprecated at this 

time in the progress of the debate the consideration of both q uestiQns 

of election and expulsion, by the introduction of his amendment T 

Mr. FERRY, of Connecticut. In examining all the evidence in this 

case, I have be~n unable to avoid the conclusion that, in the election 

of a Senator by the legislature of Kansas in January, 1871, there was bribery of members of that legislature, bribery in the interest of Mr. 

CALDWELL, bribery, the purchase-money of which was paid by 1\!r. 

CALDWELL himself. Having arrived at that conclusion of fact, it seems to me essential, not simply to the dignity and honor of the Senate, not 

simply out of regard to the state of public feeling in the country, but 

fur the preservation df the very institutions under which we live, that 

the Senate before it adjourns should in some way emphatically express its condemnation of those transactions. 

The Committee on Privileges and Elections, substantially finding 

the facts as I find them, have reported a resolution declaring the seat 

of Mr. CALDWELL vacant, on the ground that he never was duly and 

leo-ally elected a Senator from the State of Kansas, and the majority 

of the committee place that result upon two grounds: fir t, that a sufficiently great number of the members of that legislature were bribed to affect the result, to wit, the election of Mr. CALDWELL, and, 

therefore, that the ele·ction was void; or, if this be not, so, iu the sec- ond place, that some of the members were bribed by Mr. CALDWELL, 

and that although the number may not have been sufficient to affect 

thA result of the election, yet it so far did contaminate the election as to render it void. · Now, sir, I have come to different conclusions upon the questions of 

fact in these two propositions. I cannot find proved by the evidence 

before the Senate that a sufficient number of the members of the leg- islature of Kansas were bribed to a.ffect the result. I do find, as I 
•. . ··~ -· 

1873. CONGRESSIONAL RECORD. 157 

have said, that members were bribed, and brib.ed by :Mt·. CA~DWELL. 

I am unable to agree as matter of law with the report of the com- mittee that, by the bribing of a less number of members of the legislature than would be sufficient to affect the result, the election is invalidated aml Mr. CALDWELL not to be declared elected, if that were all there was in the case. And on the other hand, ditl I find the fact 

that a sufficiently large number of the members of the legislature had 

been bribed to affect the result, I should certainly arrive at an en- tirely different conclusion from that arrived at by the Senator from 

New York [Mr. CO!'{KLING] in his elaborate speech of the other day; 

and I consider the doctrinAs of that speech so dangerous, so calculated 

to subvert all political morality, so calculated to subvert the foundations of republican government, that although, in my view of the 

facts, it may be somewhat irrelevant to discuss that argument, never- theless I propose to say a few words about it. 

The Senator from New York arrives at the conclusion, as the result 

of his research and inquiry, that under our Constitution, in the election of a Senator of the United States by the legislature of a State, even though eTery member of that legislature were bribed to cast his 

vote for the member returned to the Senate, yet that election by force 

of the Constitution of the United States and existing law is a valid 

election, and the Senate of the United States is incapable of declaring 

it void. 

The very enunciation of a proposition like that seems to me to indicate that, somewhere in the course of the argument by which the 

Senator arrived at that result, there must be a monstrous fallacy; 

and, sir, I think I ~:~ee that fallacy. I do not know that I can make it as clear as I would wish to the mind of others, but in considering the 

argument of the Senator from New York, the fallacy appeared to me . to be so plain as easily to be pointed out. His argument substantially was this: We, as jutlges of elections, are bound by law; and in that 

I agree with him. The judicialtribuna]s of the mother conntr.v and 

of this country have declared the rules of Iaw by which they will be 

bound in arriving at their decisions upon the validity of the enact,-

ment of a statute; and in prescrilnngthe rnles which bind them, they 

have determined that they will not pronounce a statute invalid 

though that statute was procured by bribery; and the inference is 

then urawn that we, a parliamentary body, gifted with the power of 

being judges of elections by the Constitution, are bound by the same rule oflaw which the judicial tribunals of the country have applied to 

themselves; and there is the fallacy. That is what I utterly deny. 

The law by which the judicial tribunals of the country have bound 

themselves, and those of the country from which we derive the com- mon law, have bound themselves for generations, are not all of 

the common law. They are part of it; but there is a common law 

goveming parliamentary bodies in the administration of their duty as judges of election, as well as there is a common law of judicial 

trilmnals, and that eommon law is as old as the period when it be- carne desirable for men to obtain seats in Parliament, for there was a time when men did not choose to go to Parliament if they could help 

it; but so soon as seats in Parliament became desirable, bribery began, 

aml the law of Parliament applicable to elections in which bribery 

took place commenced, and has grown up to the present time; and 

the one fundamental principle of that law is this : that a bribed vote 

is no vote. Its nothingness, absolute nothingness, runs through the common law from the days of Elizabeth till now. No man ou this 

floor has disputed it; and the Senator from New York in his elaborate ar~nment was compelled to admit it. He read from the best known 

commentator upon electious the very language that I have used, that a bribed vot.e is no vote. 

Well, sir, what is the result'f If there be a sufficient number of 

bribed votes to chan~e the result of the election, they must be cast 

out, they must be dlSregarded, for they are nothing. Such was the common law when, in 17H7, the makers of our Constitution assembled 

to prepare tbat frame of government. They represented States in 

every one of wllich the common law of England had prevailed from 

the first colonial settlements. :Many of them were distin~uished 

lawyers, and their whole intellectnal being was imbued w1tb the 

principles of tlie common law applicable to questions of this kind. 

And in view of that common law, in view of the principle that a bribed vote iR no vote, knowing it as well as we know it now, they 

placed in that Constitution the expression that each House shall 

be the judge of the election of its members; and the expression 

taken from the parliamentary law of England, as my friend from 

:Missouri [Mr. Scam~z] suggests, still more emphatically indicates 

how their minds were turned to the common law regulating parliamentary bodies in judging of elections as it prevailad in their day 

and time in tbe motker country and in their respective States. 

And now, sir, under that power granted to the Senate by those men in the Constitution of being the judge of elections, can we not say 

whether there was an election or not f Is it trenching upon State 

rights for the Senate to say that Y Is it an inquiry into any man's 

motives Y Sir, I have never heard more unmitigated nonsense in my 

life than this talk of inquiring into motives, when you are looking 

for the fact of bribery. Why does duress invalidate an election 1 

Because the will is constrained by fear of personal harm. Why does 

bribery invalidate an election and make the vote a. nullity f Because 

the will is constrained by the hope of personal gain. And if when 

you ask after the fact of bribery you are inquiring into motives, you 

arojust as much inquiring into motives when you look after the fact 

of duress. 

But, sir, I have stray~d away somewhat from the point. The result 

of this pursuit, after the fallacy of the argument of the Senator from 

New York, inevitably brings us to the conclusion that the clause of 

the Constitution which makes us the judges of election compels u , 

when a charge of bribery is made, to inquire into that charge, because 

if the bribery have contaminated enough of the members of the legislature t.o affect the result, no election whatever has taken place, and 

it is our bounden duty to find that fact. So that if it were clearly 

proved here that the re:mlt of the eJection in the legislature of Kansas were affected by the bribing of the members who were bribed, I shonld 

unhesitatingly vote for the resolution of the committee. 

But, sir, I have uxamined this evidence carefully, and my mind is 

left in donbt as to whether a sufficiently large number of members was brihed to affect the result. The preponderating inclination of my 

mind is to believe that a sufficiently large number was contaminated; 

but in a case like this I must have clear evidence to enable me to 

declare a seat vacant because of the contamination of a sufficiently 

large number of members of the legislature to vitiate the election, and, as I have said, I find upon this point the Scotch verdict of "not 

proven." Upon the other branch of the case I find, as I have said, 

members bribed, and Mr. CALDWELL in complicity with the bribery; but 

not finding a sufficiently great number bribed to change tho result, I am unable to concur in the resolution reported by the committee. 

What, then, shall I do 'I I have found the fact of bribery; I have 

found that the Senator de facto here is guilty of complicity in that 

bribery. What shall I do 'I Shall I fold my arms and sit down and 

say that nothing can be done f Shall I consent that the halls of 

every legislative body in the land from this day forth are to be open 

to the briber with money in his bandA and with no apprehension that, 

after all, the prize which he seeks may be snatched from him on ac- count of his very iniquity Y No, sir; the Constitution, which made us judges of election, has conferred upon us also the power of expelling a member of the Senate. I will not take time here to argue the 

quibble which is made in a printed document before us, tha.t because, 

if bribery was committed, it was before Mr. CALDWELL took his seat, we have no jurisdiction of it. I hardly think that any lawyer, at any 

rate in this body, will adhere to a position of that kind in the present case. 

I, as a Senator bound to preserve the integrity of this body aud the 

purity of our institutions, ought, when I find a fact so patent as this, 

and find myself precluded from agreeing with the resolution recom- mended by the committee, to propose to the Senate some remedy which 

I think adequate; and believing the remedy of expulsion to be the 

only one adequate, I find it to be my duty, painful as it is, kindly as my relations with Mr. CALDWELL always have been, to present the · amendment expelling him from this body, for which I can vote in lien 

of a resolution for which I cannot vote. 

And moreover, sir, if I am right in the decision of fact at which I 

have arrived-if it be true that Mr. CALDWELL has been guilty of 

bribery-we must not have such considerations as have been pressed 

upon us here weigh upon our minds, that he waa more sinned against 

than sinning; that he is a kindly and courteous gentleman; that he 

has not an enemy on this floor. All these things are true; but if a thousand more good things could be said of him, it would not change our duty. The hands of Algernon Sidney were polluted with French 

gold, paid and accepted for services rendered to a French king in the 

British Parliament Not the great name of Sidney ought to protect 

him were that charge brought home to him, were he living to-day, 

from the censure, and the strongest censure, of that body whose privileges he had abused. 

No, sir; if this fact be true, Mr. CALDWELL ought to be expelled 

from the Senate of the United States, and anything less than that is a shame to the nation. If it be true, who is there upon this floor who 

would vote that the seat was vacant, who cannot vote for the amendment to expel 'I Who is there that believes that a sufficient number 

of members of the Kansaa legislature were corrupted by bribery to 

affect the election, who must not also find the fact that in that bribery 

Mr. CALDWELL had a part T And he who can vote to vacate the seat 

because of such bribery, and finding Mr. CALDWELL to have had a part therein, can he nott also vote for expelling him from this body Y 

Is it not his duty to vote to expel him from this body! I do not 

want to stand here before a body of Senators of tho United States and 

dilate upon the enormity of the crime of bribery and how it goes 

down to the very fouqdations of the institutions under which we live. 

We all know it; and if we believe the facts which have forced therr..- selves upon my conviction, we shall stifle our own consciences if we 

do not vote to expel. 

Now, sir, do we believe those facts 'I for there, after all, is the g1·avamen of this case. It is not a question of law in this case that naturally would embarrass Senators a hundredth part so much as the 

questions of fact. I have read this testimony; I have read it care- fully, not with the hope of exonerating Mr. CALDWELL or with the 

hope of finding grounds to convict him, but that I might come at the 

truth. And, sir, as I have said, reading this testimony in the light 

of twenty-five years' experience in weighing and comparing and sifting testimony, reading it in the light of the exercise of common sensE.' 

upon the common affairs of life, I must find that members of that 

legislature were bribed with money to vote for ALEXANDRn CALDWELL; I must find that ALEXANDER CALDWELL knew of l:!Uch bribery, and paid the money to carry it into effect. I do not stop J .,.. ~- t.o talk about the Carney case aml the Carney transaction. 
158 CONGRESSIONAL RECORD. MARCH 22, 

It is said thf\ witnesses are not to be believed. There are Carney, what it is. Their testimony agrees with all the circumstances which 

and Clarke, and Hammond, and Spriggs, and Anthony, whos" testi- transpired in connection 'vith the transactions to which that testimony, if true, or a tithe of it true, stamps indelibly this tTausaction mony refers, and is what we should expect to find in connection with 

with all the features of bribery. But it is said that Carney and just such transactions. For instance, Mr. CALDWELL becomes a can- Clarke are false; it is said that all the men whom I have named were ditlate for the Senatorship, and illegitimately at least, and improperly, 

connected with negotiations for brihery, and therefore not to be be- admittedly pays out 22,000 in buying off opposing candidates. He 

lieved. Why, sir, the answer is open and patent to every mind exer- is at the capital with a host of strikers from different parts of the 

cising its own judgment. Of course, in obtaining evidence of bribery, State of Kansas, and those strikers, at least, are about, offering money, 

the witnesses, more or less of them, will be those who were coutam- seek'ing to procure the price of members, demanding money for themmated by complicity in the transaction. But who are the two main selves, until the whole atmosphere is thick and murky with corruption, 

witnesses relied upon to contraillct Carney, and Clarke, and Ham- and every citizen of Kansas who breathed it must have felt his cheeks 

mond, and Spriggs, and Anthony Y They are Leonard T. Smith an<l tingle with shame. Mr. Spriggs, for instance, testifies that which I 

T. J. Anderson. Who were they f A year ago or more there began read yesterday from his endence, that Mr. CALDWELL himself said to 

in the le~Yislatnre of Kansas an investigation of these transactions, him~ "If there are members who 'va.nt money, send them to Len. 

and Leo;a.rd T. Smith a.nd T. J. Anderson were citizens of Kansas. Smith; what he does I sanction;" and Len. Smith, all througb, is 

If they knew anything about this affair, it was their bounden duty found to be the principal operative agent for Mr. CALDWELL, laboring 

to make it known to that legislatnre, for everyllouy here who has for him, drawing large sums of money, and dining and wining mern- claimed that we have got nothing to do with this, has insisted that hers of the legislature. Anderson testifies that Smith was doing that. 

the legislature of Kansas was tlle proper forum. As citizens of Kan- What is said lly the witnesses that I have named is natural ancl probsas, at all events, they were bound to hold themselves in readiness ahle, and wuat yon would expect in connection with the proved a.nd 

to answer a subpren~,t; but, the moment they heard tllat an investi- admitted facts all through these transactions. The witnesses Hamgation in their State wai pending, they both fled the State. Fot monel and Anthony and Spriggs have uo motive for falsifying. Their 

what! They came stealthily back from time to time. Constables invention exceeds that of 1\fnnchausen unless their statements be 

&.od sheriffs were after them with subprena, aud they fled again. J..,or true. Detai1s1.time, place, and circumstance are given of s~ch a. charwhat f Sir, it is said that "conscience does make cowards of us all;" acter that tue imagination could not ha-ve invented them. The Senand it was the guilty conscience in their hearts tllat drove them from a tor from Illinois [1\lr. LOGAN] said the other day that Spriggs was their State. And now, after the lapse of another year or more, they not to be believed in his narrative of an interview with CALDWELL, come here, and how do they testify Y Let me chara~terize the whole because after the lapse of a year and a half he fixed the wrong day of 

testimony of Leonard T. Smith, for instance, by the character which the month for the day of its occurrence. Why, sir, there is not a lawyer was given to it by the Senator from Wisconsin, [.Mr. CARPENTER,] as certainly among ns but knows that such a mistake as that will not. that testimony closed. For hours, apparently, Smith bad been upon and ought not to shake for a moment the credibility of the witness 

the stand, e~ridently trying to keep back everything that he knew, or disturb our confidence in the veracity of his test.imony; and that 

holding back his knowledge of the transaction between Carney and is all that I have heard agaiust the testimony of Spriggs in all this 

CALDWELL to the very verge of peljury; yea, quite over it, in my long discussion, in all the Senator from Illinois had to say, in all the 

judgment; and as he left the stand another witness was called, and Senator from Nevada had to say. this was said: Mr. STEWART. If the Senator will nllow me a word right there, 

Mr.CARPENTER.· Iwishthiswitnessadmonished,beforetostifying,thattheoath he says it is impossible to invent such a state of circnmstauce5. 

ail ministered here not only requires witness to state the fact in answering ques· I should like to submit to him, if my theory of the case, which I maintiona, but to state all he 'knows. The last witness, Mr. Len. T. Swith, seems to tain is borne out by the testimony, be correct, that this was a blackhave intE:nded to conceal the most important part of his test.imony. mailing lobby, for the purpose of obtaining money for themselves, is 

And that is Len. T. Smith, who fled from Kansas to avoid ~he sub- not everything connected with that natural and all the stories that 

prena of the Kansa.s legislature, and that here stands perjured be- grow out of it! If Carney, Sprig5s, and all hands were there to make 

tore this committee, endeavoring to conceal the most impot·tant part money and had their headquarters in Carney's room, is not a.ll this 

of all he knew l scandal natural, growing out of that bla.ck-mailing orgauization f 

.Mr. CARPENTER. Will my friend allow me a moment f Mr. FERRY, of Connecticut. The trouble about the matter is t.ha.t 

Mr. FERRY, of Connecticut. Certainly. . · you do not lay the foundation for your black-mailing conspiracy in 

Mr. CARPENTER. The Senator, by his reference to that remark one jot or tittle of evidence. Where does this business begin Y Len. 

of mine made in committee, and the application which he now seems Smith is negotiating with CALDWELL for the purchase of Carney's 

to make of it, would seem to leave the impression that I am vindi- chances. There is the beginning of it. Len. Smith gives his votes 

eating .l\lr. Len. T. Smith. I have no more respect for Mr. Len. Smith and CALDWELL takes them up, and just at this time CALDWELL is say- than the Senator has. I think he acted very badly on the stand. I ing "What Len. Smith does I do." Black-mailiug with an agent to 

characterized it as it struck me then, and I characterize it in the go and do tho work of paying the bribe to buy out Carney! There is same way now; but what I want to suggest to my friend is, that, the beginning of this work. Is it the beginning of bribing a lcgislabecause bad men have sworn that they did not do what other bad ture or the beginning of black-mailing a candidate! Judge, Senators, men say they did, is no reason why we should convict CALDWELL of for yourselves. a thing not proved by anybody. :Mr. President, I have gone further into this testimony than I han 

:Mr. FERRY, of Connecticut. The point of the argument which I intended, but I have indicated at any rate the reasons why upon this was making, the Senator has forgotten. Here are five witnesses whom testimony I must find the fact that bribery occurred, and tha.t CALDI have named testifying to facts which, if true in the one-half part WELL paid the purchase-money. 

thereof, wonlu inevitably· convict Mr. CALDWELL of bribery. Among But the Senator from New Jersey [Mr. FREL-rnGHUYSEN]-and l 

other rea-sons given here for not believing the testimony of these wit- am sorry he is not here-with his kind heart, told us yesterday, nesses is that they are contradicted over and over a.gain by Len. T. in substance, that we should strike from the Constitution the power 

Smith and T. J. Anderson. I did not refer to the Sena.tor from Wis· of expelling members of this body, and strike from it our capacity as cousin as the one who had made the argument that they were thus judges of the election of members, rather than to have a trial of an contradicted, though I think I have heard during the course of this offender hy the Senate of the United States under either of those discns~:;ion from his lips, on tbl.$ floor, that the witnesses against l\Ir. clauses of the Constitution. That wa-s t.he sum and the substance of 

CALDWELL were contradicted over and over again, by other witnesses, his argument. Sir, those clauses were put into the Constitution for a though he may have referred to other persons, members of the legis- wise purpose. The expul ion clause is one essential to the integrity 

lature, who made these contradictions, instead of Smith ~nd Ander- of this body; and when I speak of that I do not wish to have it nn- son. derstood that the reason is exhausted when the integrity of this body 

Mr. CARPENTER. If.my friend will allow me once more, my own is spoken of. What is this body for 'f What are its honor, integrity, 

opinion is that men pe1jured themselves all around, that it was liar dignity, purity for Y It is not for ourselves. It is not to cast a halo 

a(Yainst liar, and I was offsetting them-on a par. I think Len. Smith around our foreheads. "\Ve are a component part of the legislature s~ore falsely, but he swore just as truly as Mr. Carney or Mr. An- of a great nation; a nation whose Government is so organized that. 

thony or Mr. Clarke. I think they all lied. corruption cannot exist without prostrating the liberties of the peoMr. FERRY, of Connecticut. Let us see. Let us not forget that here ple and the prosperity of the Republic. The Senator from New Yorlo we are a grave judicial tribunal, and that when testimony is before said the othet day, and said most truly, that England was honey- us we are to believe that testimony unless the evidence against it be combed with bribery from Cornwall to Northumberland. He might 

such that it ought not to receive out credence. You may say that have gone on and said that England, with her aristocratic form of 

Carney and Sidney Clarke were instigated by motives of personal government, prospered yet. But, sir, here it cannot be so; here prosrevenge or by a desire to extract money from Mr. CALDWELL in what , rate the purity and integrity of the Senate to the rich men who seek 

they have done in this investigation. But what is to be said of the Feats here simply for personal ends and without regard to the welfare 

testimony of Mr. Spriggs, a witness who is a reputable man, a wit- of the country, and to the great corporations who are advancing with ness against whose character no one speaks, a witness who has no giant steps to the control of all the power of this land, and the danmotive under heaven to come here and lie about this matter T You ger from which bas never been more faithfully <lepicted than it has 

may read the testimony from beginning to end, and he is simply tbe heen by the Senator from Wisconsin-prostrate our integrity autl 

most reckle s, careless, perjured liar that ever lived, without a mo- purity before them, prostrate the integrity and purity of tile legisla- tive to make him so, or what he states is true. tnres of the States, and you have sapped the foundations of all onr Then, again, there is one characteristic of the testimony of Carney, hopes; yon have made republican government a. sham; yon haYo 

and Cla.rke, and Spriggs, and Anthony, and Hammond, which never II prepared the way for that ultim:-tto corruption whose only final result 

exists except as co-exh;tent with substantial truth, anu I will tell you is the empire of a 'l'iberius or a Napoleon III. 
1873. CONGRESSIONAL RECORD. 159 

These things are too grave for ns to a.dmit kindly considerations 

toward a fellow-member or technical considerations of technical law 

to prevent us from doing our solemn dnty. At any rate, in offering 

this amendment, I have tried to do mine. The amendment which 

the Senator from .Michigan has offrred as a !>Ubstitute for the one proposed by me is one for which I cannot vote, first, because it 

declares that Mr. CAI .. DWELL was elected a Senator from the State of 

Kansas, and though I find the fact not p_roven as to the controlling 

effect of the number of members bribed, yet the fact ie not clear 

enough, on the other baud, for me to vote that be was eleeted. 

Mr. FERRY, of Michigan. If the Senator will allow me, I desire 

to ask whether I misapprehended him when in the course of his re- marks I understood him to st.ate that he could not vote for the original resolution reported by the committee, which declares the election 

void! 

Mr. FERRY, of Connecticut. I said I could not vote for it. 

Mr. FERRY, of Michigan. I have one other question; but before 

putting it I desire to say that my object was not to strike down an expression upon the idea embodied in the amendment of the Senator 

from Connecticut. I now ask him what difference there is in voting 

upon an Affirmative declaration and voting upon a negative one, my 

amendment decla.riug that there was an election, and the report of 

the committee declaring that there was not an election, and the Senator stating that he should vote against the re~Wlntion of the com- mittee Y 

Mr. J<'ERRY, of Connecticut. As I stated, I should vote against 

the resolution of the committee, because I found the Scotch verdict 

of "not proven" as to the complicity of a sufficient number of mem- bers of that legislature to invalidate the election; and so, on the 

other hand, I cannot vote for the amendment of the Senator from 

Michigan, because the bribery and corruption which shroud the 

action of that legislature and the atmosphere of t.bick darkness are such that I cannot find as a fuct that Mr. CALDWELL was properly 

elected.- Mr. FERRY, of Michigan. Then where would the Senattlr leave 

Mr. CALDWELL-hanging between heaven and earth f 

Mr. FERRY, of Connecticut. I will state that in a moment i I waa jnst coming to it. The Senator from Michigan and some other ::;euators have entertained, and I think the Senator from Nevada did so yesterday, the strange delusion that there is no such thing as a Senator d-e facto, and tl1at if we happen to get a Senator de facto into the 

Senate of the United States, the clause of the Constitution providing 

for the expulsion of a member will not apply to him. . Mr. FERRY, of Michigan. I desire one more interruption, and 

then I will cease, if the Senator will a1low me. · The VICE-PRESIDENT. Does the Senator from Connecticut yield 7 

Mr. FERRY, of Connecticut. Certainly. 

Mr. FERR:Y, of Michigan. We are too good friends to misrepresent 

each other. I do not wish to be oversensitive on this question, and 

I am not; but I desire to be placed right, as it is a grave qnestion. 

What harm is there, I ask the Senator, instead of shirking the ques--

tion-not that I suppose the Senator would do it, but I am speaking 

of the body at large-if they fail to pronounce a judgment upon the 

quest.ion whether there has been au election or not, what objection is 

there to declaring in positive declaration whether an election bas oc- curred in the case of .Mr. CALDWELL, from Kansas f 

Mr. FERRY, of Connecticut. I was just coming to that. After having stated that it would be impossible for me to vote for the amendment of the Senator from Michigan, because of the obscurity resting over this election, from the thick darkness of corruption that sur- rounds it, I a.dd t.bat I cannot vote for his amendment from its utter 

irrelevancy to the resolution before the Senate as it no-.v stands. 

Why, sir, a resolution is introduced into the House of Representatives 

fer the expulsion of Preston S. Brooks for assault upon a Se1;1n.tor in 

the Senate-chamber, and somebody gets up and offers as an amendment: '' Resolt,ed, That Preston S. Brooks was duly elected a member 

of the Honse of Represent.ati ves." Who would vote for it f The fact was so. Preston S. Brooks waa duly elected a member of the House 

of Representatives, but whether you believed the fact to be so or not, 

you would not vote for such an amendment as that to a resolution for 

expulsion. I am proposing a resolution of expulsion based on the turpitude of the membe1·, while you propose to offer as an amendment 

that he was duly elected. 

Mr. FERRY, of Michigan. Will the Senator allow me again Y 

Mr. FERRY, of Connecticut. Yes, sir. 

Mr. FERRY, of Michigan. On the question of consistency, I would 

like to call the Senator's attention to the fact that the resolution 

reported by the committee declaring the election null and voiJ re- quires but a majority vote. The Senator from Connecticut haa 

cha:nged th~ issue by off~ring an ame~dment looking to expulsion, 

which reqmres a two-thtrds vote of this body. Now, I say, if there 

is any logical inconsistency in the presentation of amendments, in 

my judgment it would apply more to the amendment of the Senator fr?m Connecticut, who has offered a proposition requiring a . two-thuds vote, rather than to my amendment, which replaces in 

the only possible form the question back just as the committee re- ported it j in other words, bas there been an election f my amend- ~ent being i!l the affirmative form, the committee's resolution being 

l-';1 ~he negative form. It. was the only possible way of meeting it, 

nd mg t.hrough or over the amendment of the Senato:;: from Connec· 

ticnt. 

With no disrespect to him, and with no disposition to shirk the 

issue which will come up on the resolution of the Senator from l\fississippi, [Mr. ALConN,] covering the very point embodied in the 

amendment of the Senator from Connecticut, I have merely introduced my amendment for the purpose of placing the question bn.ck 

logically just where the committee considered it, and asked the Senate in that light to consider it-upon the question of elect.ion. Then, on the question of expulsion, I will be with the Senator from Connecticut to meet that issue aa faithfully and as bravely as I trust and 

know be will. 

Mr. FERRY, of Connecticut. ~fr. President, it was the irrelevancy 

of the amendment of the Senator from Michigan which I regarded as being, apart from other objections, entirely fatal, and I think that the 

illustration which I gave of a resolution of expulsion under other circumstances is one which clearly shows the absurdity of attempting to 

place upon my amendment the amendment offered by the Senator 

from Michigan. He says that there is an inconsistency because my 

amendment requires a two-thirds vote. If he means by that to say 

tbn.t it requires a two-thirds vote of the Senators to adopt it as an amendment, he is mistaken. A majority of the Senate may atlopt it as an amendment, though it would requ-ire two-thirds then to pass 

the resolution as amended. 

Dut the Senator from Michigan a-sks me another question, regarding 

which also I intended to speak before I closed. Why not wait, he 

asks; why not first vote upon the resolution of the committee, and 

then vote upon the resolution of the Senator from Mississippi, which 

provides for expulsion T Well, sir, in the first place, I do not wait 

because I esteem it to be my duty not to wait. I cannot vote for the 

resolution that came from the committee. If that resolution fails, I 

have a great apprehension that this session will close without any 

action of this Senate whatever upon these flagitious transactions in 

Kansas. If that resolution fails, we have done the work of the Senate upon the report of the committee. Another Senator <iffers an independent resolution, · which never came from a committee, has never been to a committee, and a motion to refer it, a motion to postpone it to Decemher, in the present temper of the Senate, after this 

long and weary debate, what great danger there is of its prevailing 

yon and I, sir, know too well. And it is because I believe it to be my 

duty to do all that I can to bring this Senate to some definite action 

upon these transactions in Kansas that I offer my resolution of ex- pulsion as an amendment. 

1tlr. CARPENTER. Will my friend allow me to make a suggestion 

at that point f 

Mr. FERRY, of Connecticut. Certainly. 

Mr. CARPENTER. If the Senator from Connecticut should withdraw his amendment, the amendment of the Senator from Michigan 

of course would fall with it, as it is an amendment to it. If he 

will withdraw that and let the Senate come to a direct vote on the 

resolution reported by the committee, I will vote with the Senator 

from Connecticut to take up the resolution for expulsion the next 

minute. There is no disposition, so far as I know, on the part of any 

Senator here, to avoid the responsibility of voting on these propositions; but they ought to be voted on separately. Let llil have a straight vote on the resolution as to the election, and then I will join 

with the Senator from Co;mecticut the next moment and vote to take 

up the resolution for expulsion. 

Mr. SHERMAN. Will m.r friend from Connecticut allow me a wordY 

Mr. FERRY, of Connecticut: Certainly. 

Mr. SHERMAN. The suggestion now made by the Senator from 

Connecticut is the O!Jly impression that has been made upon me in 

regard to his amendment. I was clearly of opinion that we ought to 

allow the vote to be taken on the proposition of the committee without its being embarra-ssed by these parliamentary substitutes. The 

question is too important to allow amendments and amendments in 

various forms; we ought to d~al with the question fairly. But if tha. 

Senator supposed there was a purpose to evade the issue on the main 

question after this resolution is disposed of, I should feel like him. 

But as the question has been debated in tho double aspect, I think we ought to decide it -forever; and I think we ou~ht to accept the 

proposition now made by the Senator from \Visconsm, who has represented the minority of the committee, and let us have a fair, square 

vote on both propositions. . Mr. CARPENTER. There will be no attempt to evade it. 

Mr. SHERMAN. If there should be a disposition to avoid a decision of the final question by votin.~ to adjourn this session and 

thus defeat allaction, I should be disposed to vote with the Senator 

from Connecticut. 

Mr. CARPENTER. There is no such disposition: 

Mr. SHERM~. I suppose not, and I hope myfriendfromConnecticut will accept that. 

Mr. FERRY, of Michigan. I a.ssent to the proposition made by 

the Senator from Wisconsin. My only object in the amendment I 

offered was to place the question right back on the ground reported 

by the committee, which would be accomplished by the withdrawal 

of the amendment proposed by the Senator from Connecticut. I 

would in that case, if it did not drop with the withdrawal of his 

amendment, withdraw minA. No one is authorized to speak on my 

behalf; but I wish for myself to disclaim that, in the moving of the 

amendment, I designed to prolong or evade a vote on the question 

of expulSion. I a.m ready to vote a.ga.inst atljournment, and t-o ~;it 
160 CONGRESSIONAL RECORD. MARCH 22, 

I 

hflre until we have considered that question and arrived at a vote. 

Now let me not be misunderstood on that poin_t. 

.Mr. CARPENTER. Allow me one word more. I do not believe 

there is a Senator in this chamber who does not feel that it is the 

duty of the Senate, after this full discussion, to end the entire matter ·here and now; and. I am for ending it. I say to the Senator from 

Connecticut that the moment a vote ba,s been taken on the resolution 

of the committee, if it is defeated, I will vote to take up the resolution for expulsion, and I do not believe there is a Senator here who 

would vote not to proceed to its consideration immediately. 

Mr. BUCKINGHAM. I thin~ there is very great objection to proceeding to act upon the resolution offereu by the committee. I stated a day or two since that I thought the committee erreu in not presenting a resolution for expulsion ; and my objection to 1-h€' course suggest,ed by the Senator from Wisconsin is this: Suppose we first act 

upon the question whether Mr. CALDWELL is entitled to a seat. If we shall determine that he is entitled to a seat, and the question comes up then in regard to expulsion, we may fail of that, because it requires a two-thirds vote. It is a matter of so much importance that it appears to me we should try the main question first, and not try a quest,ion on which, if we fail, we cannot reach the other; and we should 

fail of reaching it if, by voting on the resolution of the committee, we shoulu tind that Mr. CALDWELL was not elected. 

Mr. FERRY, of Connecticut. Mr. President, the Senator from Wisconsin, the Senator from Ohio, the Senator from Michigan, aud myself make but four members of the Senate. I have, contemplating 

the length of this debate, the great anxiety, again and again expressed 

of Senators, to get away, felt that there was, as I said, serious danger 

that .no vote would be arrived at upon the resolution of the Senator 

from 1\li sissippi if we took the vote upon the resolution of the com- ruitteo as it stands. But, sir, I have no wish by amendments to turn 

thit> matter from the cotl.l'se which it has hitherto taken. I could not, 

however, withdraw my amendment without the unanimous consent 

of the Senate that, immediately after the vote has been decla.red upon 

the resolution of the committee, without further debate or amondment, we proceed to vote upon the resolution of the Senator from 

Mississippi. Can I have that T . Mr. CARPENTER. It seems to me that would be very unreason- able. I do not suppose that the debate would last for a day; but of 

coursA some Senator who bas not spoken at all on the question of 

expulsion might desire briefly to state his reasons. Mr. FERRY, of Cflnnecticut. I heard one Senator say in this debate 

that the discussion on the resolution of expulsion must occupy days. 

.Mr. C.iRPENTER. It ha-s occupied days. That bas been discussed as wucb as the other. The discussion has covered both grounds. 

.Mr. FERRY, of Connecticut. The Senator making that statement wa-s arguing that we were discussing first the resolution of the com- mittee, and that after that days would be occupied in the discussion 

of the resolution of expulsion. 

Mr. MORTON. He said that would be an entirely different proposit.ion. · , Mr. CARPENTER. Let me make this proposition and see if we can have a general understanding: that the debate on the expulsion reso- lution shall not exceed four hours, and be confined to ten minutes 

apiece. 

Mr. FERRY, of Connecticut. I have no objection to that. That 

woultl l>e reasonable. 

Mr. SHERMAN. I think that is fair. 

Mr. CONKLING. It would be better to say "one day." 

Mr. CARPENTER. Well; limit it to one session. 

Mr. FERRY, of Connecticut. But not driving us into a night session f 

Mr. CARPENTER. A session ending by five o'clock. 

Mr. :FERRY, of Connecticut. I have no objection to that. The 

understanding, then, which is proposed between us is this, that after 

the vote .has been taken upon the resolution of the committee, one d:.ty, terminating at five o'clock, shall be allowed for debate upon the 

resolution of the Senator from l\Iississippi, -the speeches being limited 

to ten minutfls each. If unanimous consent can be had to that ar- rangement I will withdraw my amendment. 

Mr. CARPENTER. I hope.-unanimons consent will be given. 

Mr. MORTON. I do not know what is to be the precise effect of 

this proposed arrangement. I give no consent myself now. The VICE-PRESIDENT. Unanimous consent is not given. 

Mr. FERRY, of Michigan. I should cheerfully withdraw my amendment if I coulu now, but the Senator from Indiana has prevented it 

by his objection to the proposition of the Senator from Connecticut. 

M.r. BUCKINGHAM. I object to the withdrawal of the amendment proposed by my colleague. I think that is the question which 

shonl<l first be tried, and I hope it will riot be withdrawn. 

The VICE - PRESIDENT. The Senator from Connecticut [M:r. 

FERRY] is entitled to the floor. 

Mr. FERRY, of Connecticut. I believe, Mr. Pr~sident, that I had 

about finished my remarks when we went off into this discussion 

about a definite agreement, and I will yield the floor. 

Mr. ANTHONY. I do not think the objection of the Senator from 

Indiana should prevent this arrangement, if it is accepta,lJle otherwise. The Senator from Indiana, who has charge of this matter, un- 1oubtedly ought to be allowed to occupy his own time i.n closing, and so should the Senator who is on trial ; but if the other Senators can t't.'rue to a gener:.t1 uuderstanding to limit tho del>ate, as l1as l>ecn snggPFtt"d1 I do not think the objection on the part of the Senator from 

Indians should prevent it, his time being unlimited and the same privilege being given to either the Senator who is on trial or to any 

Senator who may represent him. 

Mr. STEWART. I cannot assent to anything of that kind. I 

think the proceedings of yesteruay preclude iny assenting to any 

such thing. 

Mr. LOGAN. This proposition has nothing to do with the resolution of the committee. It is only to apply after tho.t has been voted 

upon. 

Mr. ANTHONY. I so unclerstanu. 

Mr. LOGAN. It has nothing to do with that; and any time any 

Senator may see fit to occupy on the resolution of the committee is 

accorded. The proposed arrangement does not affect that. 

Mr. ANTHONY. I so nndenltand. The resolution of expulsion can be discus ed, as it has been discussed here, before we come to a vote on the resolution now pending. 

Mr. STEW ART. Yesterday I undertook to make some remarks, 

and it was ttll'ned into a running discussion all around. I want to 

hear everything that is said on this case, and I do not propose to make 

any arraugement, in a matter so important, in this early stage of the 

discussion, not believing that half the Senators hav~ read the testimony. If we adopt the suggestion of t.he Senator from Rhode 

Island, we give to a particular man unlimited time and cut off others; 

that seems to me very remarkable. This is not at all like an ordina.ry case of legislation. Let us go on a little longer with the discussion 

before any arrangement is proposed. 

.Mr. ANTHO~'Y. It is always customary for the Senator who has 

charge of a measure t.o close the discussion. 

Mr. STEWART. We are all equally in charge of this case. Mr. ANTHONY. Undoubtedly the ~ena.tor from Indiana has charge 

of the pending resolution. . Mr. LOGAN. He has charge of the resolution of the committee, 

but not of the other. 

Mr. ANTHONY. That is true. I agree that it is proper that a Senator in charge of a measnre should close the debate; but of course in this ca-se the Senator implicated should have the privilege of closing .. 

Mr. STEW ART. I think it would be entirely improper, and other 

Senators would not do their duty, if, aft.er the Senator from Indiana 

made his speech, in case he had declared anything which wanted cor- rection, they did not correct it. If any statements were ma£1e here 

which I did not think were warra.nted by the evidence, and which were calculated to prejudice Mr. CALDWELL or to do him injustice, I 

should feel derelict if I did not get np in my place and say so at any 

time before the vote wa taken. 

Mr. SHERMAN. There would seem to be a pause in this matter, 

and I will take a moment of the time of the Senate. I do not iuteud 

to give my opinion on the merits of this proposition except by my vote. 

I have resolved myself into the condition of a juror upon this questiou. 

Parliamentary law embarrassed me a little as to the order of the votes; 

but I think I understand it now. I regard it as a matter of public duty that none of us dare shrink 

from to dispose of this case of Mr. CALDWELL during the present ses- sion of the Senate, and I should regard it as a violation of public duty 

to avoid or delay any vote that may come up before us, however un- pleasant it may be. I also think it is due to the committee who investigated the matter that the resolution presented by the committee 

should be voted upon first, that it should not·be embarras ed by questions of order, amendments, or parliamentary forms. Therefore, I feel 

IIJYSelf bound, from what is due to the committee as a body, to vote 

against any amendment whatever, until the question is solved whet.her or not Mr. CALDWELL is legally elected. Then we are equally l>obnd 

to take the converse of the proposition which has been made and debated for two weeks, offered by the Senator from Mississippi, and vote 

upon that after a reasonable debate. But if I could, even for a moment, 

entertain the idea which has been suggested by the Senator from Connecticut, that there would be an effort made to a\·oid the vote on the 

latter proposition after the disposition of the first, I might do what 

others have been compelled to do sometimes, resort to parliamentary 

tactics to get the proposition voted upon that I desire voted on. But 

I do not believe there is the slightest danger of that. In view of the 

declarations already made on the floor here, I have not the slightest 

idea of it. 

Mr. BUCKINGHAM. Allow me to ask a question. 

Mr. SHERMAN. Certainly. 

.Mr. BUCKINGHAM. If we should vote on the proposition of the 

committee, and ;say that Mr. CALDWELL is not entitled to his seat, 

how coulcl we ·reach the proposition of the Senator from Mississippi f 

Mr. SHERMAN. It would be unnecessary to reach it, then. I 

would not cast a Parthian arrow at any one who was elected that we said was not entitled to his seat. If he is not entitled to sit here, we have no right to expel him; we have no right to fire arrows at him 

after we have driven him out of our presence. I do not think my 

friend from Connecticut, on a moment's reflection, would desire to 

say auythino- more about .Mr. CALDWELL's case when he is not a member of the Senate. 

Mr. BUCKINGHAM. I think we should detertnine first whether 

he is a member of the Senate, if that is not determined already; and 

if he is a member of the Senate, the question comes np whether we cannot or ought not as a matter of duty to expel him. 

1\fr. SHERMAN. 1'hat is the very point. 
1873. CONGRESSIONAL RE-CORD. 161 

Mr. BUCKINGHAM. I sayfor that purpose he is a member to-day. 

Mr. SHERMAN. I think the logic of this whole case, with due def- erence to my friend from Connecticut, requires us first to pass upon 

the fact whether Mr. CALDWELL is entitled to a seat here among us. If the resolution of the committee is adopted by a majority vote, he 

has no right here. Then he goes, and we have no right to throw ar- rows at him, or throw our re olutions of censure at him, or anything 

of the kind. He is then a private citizen; that is the end of the ca~e. 

But if, on the other band, it is resolved that he was legally elected, 

but that he procured his election by such misconduct as would justify ns in the presence of the American people in expelling him from this 

body, that is a question which we ought to act upon at this session 

immediately after the other, and it seems to me that there ought to 

be no question about the willingness of all Senators to agree that this case shall be disposed of by a final vote. 

As I said before, my mind has been ma.de up for some days, and I am prepared to vote; but I do not wish either to convince others or to influence the opinion of others, but I am disposed to give my 

opinion by my vote, and to vote against all amendments to the proposition made by the committee until that is settled. If that is settled in one way, that is the end of the case; if it is settled in another 

way, then let us take the vote deliberately on the other question that 

is presented to us by the resolution of the Senator from Mississippi. 

That is the course I will pursue. 

Mr. MORRILL, of Maine. Mr. President, for myself, I have not the 

slightest embarrassment in voting in the order suggested by the re- port of the committee, as it will be seen from the observations I had 

the honor to submit to the Senate yesterday. But from the standpoint taken by the Senator from Connecticut [Mr. FERRY] this morn- ing, it is obvious enough that the same rule does not apply to him; 

and so I take it from the general sentiment expressed on all hands 

here, all Senators are not free in the sense that I am to vote on the 

question a,a presented by the committee. Now the proposition of 

expulsion is an inclusive proposition. We are divided here on law, 

not on fact. Many of us who entertain the question touching the 

legality of the election still entertain the same opinions with others 

in regard to the question of expulsion, the power of expulsion, and 

the duty of expulsion growing out of these facts. 

Now, it will be seen that on the question of expulsion all those 

would unite who believe that the facts justify expulsion, though they 

hesitate whether they do or not justify declaring the seat void. That 

is the case of the Senator from Connecticut; and you see that he is 

obliged to present that proposition growing out of the facts which he 

says satisfy him in his mind that bribery existed, but do not satisfy 

him or leave him in doubt whether it existed to such an extent as to 

vitiate the election. He is obliged to anticipate the action of the Senate by submitting a proposition which includes a point on which 

others have argued, that the election is vitiated by the fraud. Therefore, while I am entirely free to vote in the order suggested by the 

committee, and shall vote in that way in any contingency, I sympathize entirely with the views of the Senator from Connecticut, and I see in the attitude in.which be is placed that the true proposition for 

him to vote first upon is expulsion; and so it must present itself to 

every Senator who believes that bribery exists in this case, but doubts 

whether to a sufficient extent to vitiate the election. 

Mr. SCOTT. Mr. President, one consideration strikes my mind, 

which I feel impelled to present to the Senate, as to the desirability 

of first voting upon the resolution of the committee. 

Through all this discussion of nearly two weeks no one has doubted 

that the power of expulsion applies to this case, and the only question 

is wheth~r the facts justify the exercise of the power. But upon the 

other question, o~ of the most important that has ever been presented to the American people or to the Senate, there has been a very 

wide difference of opinion, not ma1·ked by party lines, as was said 

yesterday, to the honor of the Senate, by the Senator from Maine. 

Now, sir, after having spent two weeks upon the discussion of that 

most important and delicate question, striking down to the very roots 

of this Government, if we pass upon the resolution of expulsion first 

and there be two-thirds for expulsion, that question is left where it was when we started, and the sense of the Senate is not declared upon 

it. I think that it is not the least important result to be arrived af; 

from this discussion, that the sense of the Senate be declared upon 

that most important and delicate question. I am ready to vote upon 

either of these questions; and having my convictions very decided 

upon both of them, it is of very little momeut to me personally which 

of them comes first. I shall vote against the resolution of the com- mittee, let it come first or last. I shall vote for the resolution of ex- pulsion, let it come first or last. But if the resolution of expulsion 

do come first, and there be a majority for it, we shall never reach 

that most important question which has divided the Senate for the 

laet two weeks. 

Mr. BAYARD. Will my friend let me ask him, how can he vote for 

expulsion in case the :first rAsolution should carry, and the person be 

declared not to have been elected f 

Mr. SCOTT. Of coursE\ I cannot then. I say I am ready to vote on them in any order. We can never vote for the resolution of expulsion, of course, if the first resolution be carried. 

Mr. CONKLING. Let me put it the other way, if my friend will allow me. Suppose a majority of the Senate, less than two-thirds, vote 

for the resolution of expulsion, can that same majority afterward 

turn around and vote that the very man whom they declared in favor 

11 

of expelling as a member, in truth and in law, never was a member 

of this Senate f 

Mr. SCOTT. That is a consideration which may govern members 

in their vote. The consideration which I am presenting to the Senate is the importance of having this grave court decide the question 

which bas been argued before it for the last two weeks ; and, as I 

say, if you vote first on the resolution of expulsion and carry it, you never reach that question. If you vote first on the other resolution, 

you do reach it, let it be carried or defeated, and I want the expression of the Senate on that question. 

Mr. FENTON. I only wish to remind Senators, as they seem to 

forget, that the propositions before us, by amendments now pending, 

do not bring us to a vote upon the resolution for expulsion first. The 

pending amendment brings the proposition of the committee bef4 e the Senate in a changed form, making it an affirmative declaration 

instead of a ne~ative one. I see no objection to allowing the matter 

to be acted on m the order now proposed by the various amendments, 

for it brings us back to the starting-point; and I object to any ar- ra~~ement or understanding in the matter. Let the debate go on. Mr. BAYARD. Mr. President, the Senator from Pennsylvania [Mr. 

ScoTT] has well said that the question which is to be solved by a decision of the Senate upon the resolution of the committee declaring that Mr. CALDWELL was not duly elected a member of this body, 

is one which reaches principles that lie at the very root of our governmental institutions. The discussion we have had for the last two 

weeks has shown a vast variance in opinion between members, growing almost wholly out of that natural, honest mental difference arising not only from education and from organization of mind, but from 

all those nameless causes which affect the judgment of men. It is 

from the differences of honest minds that truth is evolved. 

And, Mr. President, there is no question that, while a proper con- sideration and decision of this subject must embrace great fundamental views of the structure of our Government, it behooves us, with 

patience, care, and grave anxiety, to approach such a consideration 

and decision. I do uot think that any of us can overrate the importance of a proper decision of these subjects ; and yet at the same time it seems to me that there is a question before this body even more important. It is the question, the great moral question, that 

underlies this case, the question whether, de facto or de jure, this 

body contains a member unworthy, unsafe from his acts, or acts to 

which he has been a party, to remain a member of the body. While 

I shall experience that sense of relief which certainty brings with it, as any man will who is enabled to come to the decision of that which 

has distressed him in its consideration, even though the decision may 

be contrary to his own views; while I am anxious for that; while I 

also believe that, whether we reach that decision by a vote of the Senate or not, yet, nevertheless, the discussion which has preceded it has 

been timely and valuable, still I say there is the other question which 

has a right of precedence, which we are called upon to decide in advance, a question of fact, first, whether this body does contain an element unsafe to allow t<J remain within it, and next, whether there is 

that high sense of justice to the Government to which we adhere that 

will induce us to pronounce sentence upon him. That is the more important question in my mind, and ae a result of fact it settles the first 

in so far as it relates to the present case. There are three considerations before the Senate. The first is the 

report of the committee that the seat be declared vacant. That is to 

be decided as a question of constitutional power, as to whether the 

Constitution of the United States justifies the report of the committee that the seat has been illegally filled. It is a mixed question of 

fact and law. 

It is moved to amend that proposition, and substitute a resolution 

of expulsion, which would save a decision of the questions of law 

and fact embraced in the first, and simply throw upon the Senate the 

duty to decide, under the facts and under the Constitution and laws, 

whether the ri~ht existed, and, correlative with the right, the dn.tyto 

exercise that nght and power, of expulsion by two-thrrds. 

Further, it is now proposed to amend that amendment or substitute 

by declaring that there was a valid election, so that expulsion, if subsequently proposed, can act logically upon a sitting member de jure. 

Mr. President, I regret that the last proposition was offered. I 

know it was not intended to embarrass the subject; I have too much 

respect for the honorable Senator who offered it to imagine such a thing; but at the same time I respectfully submit that it does tend to 

embarrass the subject. It calls upon us to declare whether in our views of the law there was a valid election or not; that we are first 

to decide upon the facts of the case, and then, applying to those facts 

the law of the case, we are to decide whether bribery iu any and what 

degree, committed by the sitting member or not, in his interest or tlot, 

shall affect the election. Those questions are grave. The facts sur- rounding them, I do not say to me are doubtful, but they have been 

sufficient to throw doubts on mjnds as capable of judgment as my 

own, although they may have led them to a different result. The 

acts of the legislature of Kansas, the acts of the persons who took 

part in the election of Mr. CALDWELL, who were interested in his election for one motive or other, have undoubtedly thrown a murky 

cloud, as was well said by the Senator from Connecticut, [Mr. FERRY,] 

around the transactions in the town of To peka in the month of Jannary, 1871. If needs be, we must penetra te that cloud; we must dispel it; we must let in what rays of truth we may, and. we must do our duty according to our best lights. 
162 CONGRESSIONAL RECORD. MARCH 22, 

Now, Mr. President, when the opportunity of duty arrives, are not is greater. It looms over and above it all; it ought to be decided 

the claims of duty paramount Y What are they f If this body dis- first; and I trust it may be kept in such a parliamentary position cover that it is no longer safe for them to retain an element in their that it shall be decided first. The Senator from Maine [Mr. MORRILL] 

midst, if that question is made, then I say the first duty is to settle well said yesterday that we stand here in the presence and under the 

it, and by settling it you have settled all the other questions presented shadow of a great enormity. If that be true, and I think it is true, 

for decision. I trust that there will be no question allowed to come we must meet that question first, and the vote of two-t.hirds will 'between the Senate and that decision, which! hold to be its first and decide that question and carry with it all the effects. that are sought 

gravest duty at this time. to be expre sed by the majority proposition. 

I admit the importance of the constitutional questions raised by Mr. SCHURZ. Will the Senator yield to me for a moment f 

the inquiry whether this wa-s or was not a valid election; but I do Mr. BAYARD. Certainly. 

not care to embarrass members of the Senate, who agree entirely upon Mr. SCHURZ. I desire to submit a consideration to him wbich 

the grave question of tbe duty to expel whenever the facts that war- may not be without importance in ·the line of his argument. There 

rant it are presented. I do not desire to see those who may agree upon are some Senators here who entirely agree with him upon the moral 

that all-important question sever in their votes, or in any way interfere, question, but whose views are different from his as to the resolution 

embarrass, or impede a. decision on that subject, by differences upon reported by tile committee, and as he may desire to avoid a precedent 

the constitutional questions that surround the other question of the such as might be established by the adoption of this resolution, so power of the Senate by a majority vote to declare the action of a leg- they may desire to make such a precedent. Now the amendment subislature void and a. seat vacant, because of a greater or less degree stituting a resolution of expulsion may render that entirely impossiof bribery in the election. ble, and those who desire to vote "ay" on the resolution reported by 

I have heretofore given imperfectly my reasons why I could not the committee, together with those who are against that resolution, 

support the resolution of the committee. Differing with other geh- as well as against expulsion, may form a majority and vote the amenlltlemen who seem to think that they ought at this time to withhold ment down, and then the resolution of the committee may not receive 

their opinion, the conclusions of their minds, the conviction of their a majority of. votes, and both may fall in that way, and then we consciences on the subjects of fact involved in the question of expul- should have no understanding as to whether, after the failure of tbe 

sion, I have also expressed, with sadness and with truth, my own con- resolution reported by the committee, the resolution to expel should 

victions in relation to that. The expressions of opinion, whether be taken up. Would it not, therefore, after all, be better to agree to 

they ought to be given or whether it is proper to withhold them, I an arrangement by which we can first have a clean vote on the resolnmake no comment upon; but for want of that expression, by reason tion reported by the committee, with the understanding that afterof that reticence which gentlemen have a perfect rigl;lt to exerci e, ward the resoJution to expel shall be taken up immediately T we cannot know the fate of the resolution to expel, it requiring the :Mr. SHERMAN. Allow me to say to the Senator from Delaware 

larger vote; nor can we tell the fate of the resolution to declare the that if he desires to ~et a vote upon the resolution of expulsion for 

seat vacant by a majority. moral effect, he is takmg a very singular way to do it, with his know lAs I have said before, with my present views of the powers and edge of parliamentary proceedings, because some gontlemen, be knows 

flu ties of the Senate of the United States to judge of the election of very well, will vote against an amendment in the second degree, first, 

its members, I cannot consent that it should impose any punishment because they think there ought to be a square vote on the resolution 

upon a sitting member under color of deciding his election void ; and of the committee; and among them are some who will vote for a ret:>-

yet that idea bas been consented to; it was stated yesterday by the olutiou of expulsion. He knows that fact. 'fbe Senator who reports 

Senator from New Jersey, [Mr. FRELINGHUYSEN,] in positive terms, the resolution from the committee, together with my friend from 

that this was a lighter method of punishing a member. Sir, no such Missouri, [Mr. SCHURZ,] and other Senators, and you might select 

punishment can legitimately be exercised upon a member by tho vote them by the half dozen, will vote against the proposition of expulof a majority. If you mean to declare his seat vacant, yon do so sion as an amendment to the resolution of the committee. 

without reference to his personal conduct in the transaction at all. Mr. BAYARD. I have never'heard that, and, with due respect, I 

He may be as pure as snow, a.s clear a.s the light of heaven, and yet cannot precisely understand the logic of the man who says that tbe 

it may be the duty of the Senate to declare there was no election, time has come and the duty exists of expulsion, and yet says he will 

from causes entirely beyond his control or in which he had no part. not vote for it because he desires to have an opportunity to vote first 

No, sir; if this vacation be made for punishment, the Constitution on an abstract proposition, a proposition t.bat would be settled, or demands that it shall be by a two-thirds vote. rather the case presenting it would be entirely settled, by the prevaLet there be no cover of it. Let the people of this country, who lence of the two-thirds vote, an unquestioned exercise of clear con- are interested in this proceeding as much as we can be, understand st.itutional power, including in its results a practical solution of the our action. It is true that the honor of the Senate is not our honor entire case. alone; the virtue of the Senate is not alone fbr our advantage; but Mr. SHERMAN. 'Vby, Mr. President, what is the qnestion bewhatever we may have here of virtue, of honesty, of ability, is the fore us f The question is whether Mr. CALDWELL was legally elected. 

property of the American people, and to be used for their advantage A committee of tbis body have reported a resolution that he was not. 

only. If we have it, we :l;l.ave it in trnst for them and for ourselves as Tbat is the basis upon which we are acting. I may vote against a simple integers of the great Union. I say it is the duty of the Senate, ~reat many things as amendments to that proposition, which are perif they consider that the honor of the body bas been stained; that the tectly right in themselves. I might vote against the 'fen Commandsafety of the body as legislators has been endangered; that the credit ments, the Lord's Prayer, the Litany, and many other things that 

of the body has been touched, to punish him who has so invaded it, I have been taught to respect, as amendments to that proposition, 

and to say openly, not only by their votes but by the manner in which simply because I wish a vote on t.he proposition itself, and I do not 

they decide to have the question presented for their volies, what they wi h any substitute in the face of that. mean. The pregnant question put by the Senator from Missouri ought to 

The resolution to declare the soat vacant is a proposition of law convince tile Senator from Delaware, that he is not pursuing the rigb t 

that does not in any degree involve the personal conduct or cbaracter course for moral effect. On the contrary, the effect of offering these 

in a.ny way of :Mr. CALDWELL, and which leaves him personally with- amendments, involving us in a parliamentary controversy and diviuout judgment, without sentence, without punishment at all. It is an ing those who may agree npon the question of expulsion, it seems to 

abuse of terms to sa.y that it is "a milder form of punishment." It me, might present the spectacle in this body of having one-third of 

is no such thing. It is the adjudication of an abstract proposition of the body vote for the resolution of expulsion as au amendment to a. law, not in any way involving his conduct in the transaction. proposition that may finally fail in the end. I think the simplest way 

But, sir, if the question shall go beyond that, and his per onal is always the best way, and the simplest and best way is to meet 

wrong and impropriety unfitting him for membership shall come these propo itions as they come before ns-first, ou the resolution re- before us for decision, then if he is to be punished, it must be pun- ported by the committee. We ought to pass upon that as a question 

isbment expressed upon its face and inflicted b:v the only method of parliamentary law, as a question of precedent. It is a proposition 

which the Constitution of this country permits. Two-thirds of this that has been debated for two weeks. Let us take our position upon 

Senate must concur, and the resolution ought to be plain, disen- it. It is a c6nstitntional question upon which men of different partangled from other questions, express on its face, so that the country ties, both t.he great political parties of this country, are divided. llere 

may know what we mean, and that we may ourselves understand is my colleague, who has one great fault of being so much a Stateprecisely the nature and effect of our action. But if, on the contrary, rights man that he sometimes is not quite national enough, in my we are to postpone that great question for the decision of abstract opinion, agreeing with gentlemen who are a little too much national 

propositions of law involved in the report of the committee, in rela.- and too little State rights. A question that seems to divide the old 

tion to which there are differences of opinion so various that it may political parties of the country is presented to us, and has been depossibly be that in the discordant views on that subject the great bated for two or three weeks, and on the whole, I think, although the 

end sought to be reached may be overlooked and in some way de- debate bas been rather longer than I wish it had been, yet it bas been 

feated, then, I say, we may lose sight of the greater duty in pursuing a very able and very instructive debate. I can say that, as I have not 

wba.t is comparatively an abstraetion, and which, if useful as prece- participated in it. Many of the speeches that have been made in this 

dents, will lose their value even for that purpose when we consider debate are admirable and excellent. The tone of the debate has been 

for what different reasons of law and fact Senators have indicated good. Now, on the whole, after this debate upon a constitutional questheir intentions to support or oppose the resolution of the committee. tion involving parliamentary law, it seems to me it is due to the couu- I trust, therefore, that in the order of voting on this subject, as the try that we take the vote directly on that proposition; and the Senator 

resolution for expulsion has been placed in the foreground, it may be from Indiana, who has devoted so much time and labor to this subkept there. I do here aver that, grave as are the constitutional ques- ject, has the right to ask and demand of the Senate a direct vote on tions arising under the power to vacate the seat, the moral question 11 this proposition. Then the question of expulsion will come up. _J 
/ 

1873. CONGRESSIO~KIJ RECORD. 163' 

~. ' -- If I feared that there would be a disposition to evade the question 

of expulsion, then I would seek some reason for antagonizing the 

proposition of the committee by parliamentary amendments; but I 

cannot believe that, and I do not believe it. In view of the statements that have been made in our presence by those who are opposed 

both to the resolution of expulsion and to the resolution of the com- mittee, I have not the slightest idea that there·will be any disposition 

to prolong even debate on the proposition of expulsion. After we dispose of the question of the legal right of this gentleman to his 

seat here, then the other question must be determined definitely before the close of the session. Therefore, I repeat what I said a little 

while ago, that I shall vote against any amendments that may be 

offered to this resolution until it is out of the way, and then I will 

instantly vote to take up the resolution of the Senator from Mississippi, [Mr. ALcoRN.] 

bir. THURMAN. If my personal feelings alone were to be con- sulted, I should greatly prefer that we should take a direct vote on tho resolution reported by the committee, without being bothered 

with any amendment at all. I should do that, because I wish to re- cord myself in favor of that view of the Constitution that I have en- deavored to explain to the Senate ; because I wish to say by my vote 

that I believe that bribery goes to the election. On the other hand, 

while those are my own personal views, I am a little embarrassed by 

the apprehension that a majority of the Senate do not e"ntertain those 

viows, and that the decision upon the resolution of the committee 

will be adverse to that resolution, and therefore that a very bad 

precedent, in my judgment, will be set. I am here between two difficulties: on the one hand, desirous that the constitutional view which 

I entertain, although I have the greatest respect for those who think 

differently on the subject, and cannot in opposition to their views say 

that my views are necessarily right; I claim no infallibility; while, I 

say, on the one band, I wish to see the true view of the Constitution, as I consider it, vindicated by the vote of the Senate, I cannot shut 

my eyes to the apprehension that it will not be vindicated, but that 

precisely the opposite view will be decided by the Senate. 

It is very true that a decision against the resolution of the com- mittee does not necessarily decide the constitutional question, be- cause Senators may vote against the resol ntion of the committee who 

believe, as I do, that bribery does go to the election, but who think 

that the facts here do not make out a case of bribery sufficient to 

n.void the election, as is the casa of the Senator from Connecticut, 

[Mr. FERRY,] who has so. ably addressed us this morning, who, if I 

understand him aright, believes that in a case in which the majority 

that controlled the election was bribed, that wonlu go to the election. 

He agrees with me, therefore, on the constitutional question, but yet 

cannot find in this evidence sufficient proof upon which to vote that 

tbore was such a majority. That is the condition of my friend from 

Delaware, [Mr. SAULSBURY,] in tho remarks which he made the other 

day. So that a vote against the resolution of the committee does 

not necessarily interpret the Constitution. A vote in favor of it is an interpretation of the Constitution. The one mn.kes a precedent for le~al decision; the other does not, becanse questions of fact are com- plicated with it. 

.Mr. CONKLING. Will my friend allow me one moment at that 

l)Ointf 

Mr. THURMAN. Certainly. 

Mr. CONRLlNG. I wish to state a difficulty that I have in my own mind as to tho effect of these votes. I understand the honorable 

Senator to say that the adoption of the resolution of expulsion avoids 

the constitutional question. 

l\ir. THURMAN. I was not speaking of expulsion. 

Mr. CONKLING. I know my friend was not talking of expulsion. 

Mr. THURMAN. I have not come to that yet. 

Mr. CONKLING. I am aware of that; but inferentially I understand him to hold that if we do not vote upon tho resolution of the 

committee, we do not pa.ss upon what be has denominated the con- stitutional question. I simply desire to suggest to the Senator, as he 

passes along, this view: many members of this body at least hold, 

and I am one of them, that we cannot expel a man unless he be a member. I hold that we cannot satisfy ourselves a.t all by the suggestion made this morning by the Senator from Connecticut, that a ~enator may be a member d-e facto although he was not elected. I 

understand that Senn,tors must be chosen by the legislatures of 

States, not by the United~States Senate. Therefore, a man is a Senat.or because he was elected, or he is not a Senator. In consequence 

of this, those who hold this view could not vote to expel Mr. CALDWELL, unless by implication they voted that he was a member so as to be expelled. 

Now, the point I wish to present to my honorable friend is this: If 

when the record is finished it simply shows, supplementing all this 

debate, that a resolution of expulsion prevailed without avoiding, as it seems to me, the constitutional question, it-will leave an arubi<Tu- ous precedent, a precedent which will be treated on different sides0

in 

different ways. On the one side it will be said, "Why, this decides 

that Mr. CALDWELL was a member of the Senate, because it declares that a. member is expelled by this resolutjon ;"on the other band it 

will be argued, "No; the Senate avoided that question altogether; 

they chose not to pass upon the question whether 1\Ir. CALDWELL wa~:~ 

elected or not; they chose to eliminate him from the body; they took 

him up root and branch without deciding whether his seat was rooted 

in an election or whether, as has been now placed by the Sena.tor 

from Connecticut upon the record, it is competent to expel a man 

who sits here dejacto.'' 

Mr. BUCKINGHAM. Will the Senator allow rue to ask him a question T 

Mr. CONKLING. If my friend from Ohio does not object. I am speaking by his permission. 

Mr. THURMAN. I have long ago made up my mind that I can never make a speech in this body without having two or three speeches 

injected into it 

Mr. CONKLING. If my friend will pardon me, in that respect he 

is like Montesquieu, who said he wrote not to show how much ho 

thought, but to make others think. So my honorable friend, when 

he speaks, not only radiates a great deal of light, but he engenders 

light in other people. 

Mr. THURMAN. No; the Senator means that t.he Senator from 

Ohio is not witty himself, but he is the cause of wit in others. 

[Laughter.] · Mr. CONKLING. That is better, perhaps. 

Mr. THURMAN. That is what the Senator really means. 1\ir. President, if the Senator had not interrupted me, I should havo come to his point after awhile. What I was saying-it has been so long since that I have almost forgotten it myself, and I expect the 

Senate have quite forgotten it-was this: a vote in favor of the res- olution of the committee affirms that bribery goes to the election, 

and is a decision of the constitutional question. A vote against the 

resolution of the committee does not decide any such thing necessa- rily, because many of those who vote against the resolution of the 

committee may do so, not because they dissent to the constitutional 

view that bribery goes to the election, but because they do not find 

in the evidenco sufficient facts to warrant them in holding that the 

election was controlled by that. That is, I was saying it had nothing 

to do with the question which the Senator from New York had put, 

and I said further that as I desired to record my vote upon the con: stitutional question, I personally preferred to have a direct vote on the resolution of the committee; but that I was apprehensive that 

there might be a majority against that resolution composed in this 

way-composed of those who believe that bribery does not go to tho 

election, that the Senate baa no right to look into the motives of the 

members of the legislature in voting for a Senator, and of those 

who, entertaining the same view of the Constitution that I do, yet 

think that the evidence here is insufficient to make out a case to 

avoid an election for bribery. In that way the resolution may bo 

defeated; but even if that be the case, although a vote against the 

resolution would not be necessarily a decision of the constitution~! 

question at all, although, in fact it would not be, yet it could not 

fail to have great weight in any future investigation of the subject 

before the Senate. And therefore, although I prefer myself to hav_e a direct vote on the resolution of the committee, yet in apprehension 

of a wrong precedent being set, if the majority of the Senate see fit 

to bring the vote first on the ques~on of expulsion, I have no par:: 

ticnlar objection. 

But, Mr. President, the Senator from New York starts a new theoryI think he is quite entitled to the merit of invention-and that is to 

say that you cannot expel a Senator until you have first declared that 

that Senator is legally elected. 

Mr. CONKLING. I did not say that. 

Mr. THURMAN~ That is what it comes to. 

Mr. CONKLING. I beg pardon .. Mr. THURMAN. Then I am incapable of comprehending it. 

Mr. CONKLING. I do not wish to interrupt the Senator.: Mr. THURMAN. I wish to be interrupted whenever I misstate 

anything. ~ 

Mr. CONKLING. I did not say the Senate must declare that the 

Senator was elected. The Senator from Ohio surely did not so under: 

stand me. Mr. THURMAN. I certainly did. 

!.Ir. CONKLING. I said the resolution must proceed upon the ground, 

the implication, the presupposition that the man to be expelled was a member; else you cannot apply to him that clause of the Constitu:= 

tion which says," and, with the concurrence of two-thirds, may expel a. mewber." That is what I said; not that the Senate must so declare, but it must be only in the case of a member that the resolution 

could apply. 1\Ir. THURMAN. Well, let us take it practically here, for we are talking aLont a mode of procedure. SupposA the resolution of the 

committee shall be voted down, and then the resolution of the Sana! 

tor from Mississippi shall be taken up, how would that differ in any 

respect from a motion to expel any member on this floor-the Senator 

from New York or myselff 

Mr. CONKLING. Not at aU. 

Mr. THUR:rtlli~. Not in the slightest degree, would it Y Now it 

is precisely the &'tme thing if the amendment of tho Senator from 

Connecticut should be adopted; and why t ALExANDER CALDWEJ..C 

is as much a member of the Senate to-day as the Sena.tor from New; 

York or myself, upon the question whether or not he can exercise tho 

privileges, and rights, and duties of a Senator, and is subject to ex~ 

pulsion, because, until the Senate declares that be is not a member, 

be having presented the proper credentials and having been sworn in.; 

he must be regarded as a Senator. 

Mr. CONKLING. Why t 

1\ir.·-THURMAN?•-.- Bec·ause, until his prima-facie case made by his 
164 CONGRESSIONAL RECORD. MARCH 24, 

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

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

Mr. CONKLING. Because he was elected. 

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

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

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

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

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

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

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

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

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

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

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

New York is wrong in his proposition. 

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

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

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

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

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

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

although I cannot name the men who were bribed. 

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

of murder when nobody was dead T 

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

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

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

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

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

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

of the legal discretion of the Senate. 

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

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

wish to speak to-day. I do not. 

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

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

cheerfully Yote for the motion. 

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

Mr. MORTON. I withdraw it. 

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

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

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

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

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

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

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

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

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

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

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

taken, 1t would be economical to do that. 

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

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

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

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

withdraw it-that will open the whole question. 

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

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

Senator from Michigan, who has au amendment which precedes the 

amendment of the Senator from Connecticut. 

Mr. SCHURZ. I understand that. 

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

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

Mr. SCHURZ. I understand that. 

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

other amendment would fall, though the Senator from Michigan bas 

avowed a willingness to withdraw it. 

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

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

Connecticut. 

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

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

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

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

the time comes for a vote. 

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

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

Mr. MORTON. That would not settle anything. 

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

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

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

reported by the committee. 

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

I gave my consent to no arrangement. 

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

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

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

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

occupy this afternoon. 

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

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

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

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

IN THE SENATE. 

MONDAY, March 24, 1873. 

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

The journal of the proceedings of Saturday last was read and 

approved. 

RESIGNATION OF SENATOR CALDWELL. 

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

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

United States. The Secretary will read it. 

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

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

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

" UNITED STATES SENATB·CHA.MJ3BR, 

"March 24, 1873. 

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

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

"ALEXANDER CALDWELL. 

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

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

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

edgment of the receipt thereof is herewith mclosed. 

Very respectfully, your obedient servant, 

Hon. :BID.'"RY WILSON, 

Vice-President of the United Statu. 

ALEXANDER CALDWELL. 

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

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

Very respectfully, your obedient servant, 

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

THOMAS A. OSBORN, 

Governor of Kansas. 

WITHDRAWAL OF PAPERS. 

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

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

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

other departments of the Government. 

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

On motion of Mr. DORSEY, it was 

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