1032 CONGRESSIONAL RECORD. JANUARY 30, 

By Mr. FIELD : The petition of E. F . Coldwell and others, druggists of Detroit, Michigan, for the repeal of the stamp duties on medi- . cine , to the Committee on Ways and Means. · By l\Ir. HAMIL TON: Resolutions of the Legislature of New Jersey, 

in relation to arming and equipping the whole body of the militia of 

the United States, to the Committee on Military Affairs. By Mr. HOLMAN : The petition of John Wible, for relief, to the 

Committee on War Claims. By Mr. LAMPORT: The petition of Margaret W. Burrall, widow 

of Thomas D. Burrall, for extension of patent for improvement in 

corn-sheller , to the Committee on Patents. By Mr. LYNCH: The petition of citizens of Jackson County, Mis- sissippi, for the passage of the supplementary civil-rights bill, to the 

Committee on the Judiciary. 

By Mr. McCRARY : The petition of Benoval Grove, for a pension, 

to the Committ ee on Invalid Pensions. 

.Al o, the petition of A. Webster and others, of Fort Atkinson, Iowa, 

for the a.ppointment of a commission of inquiry concerning_the liquor 

traffic, t o the Committee on Education and Labor. 

By Mr. AYLER, of Ohio: Resolutions of the common council of 

the city of Cincinnati, remonstrating aaainst any delay or po tpone- ment of t he construction of the new public buildings designed for that 

city, to the Committee on Public Buildings and Grounds. Also, re olutions of the board of aldermen of Cincinnati, requesting the Representatives in Congress from that city to urge forward 

the prosecution of work on the new post-office building designed to 

be erected in Cincinnati, to the Committee on Public Buildings and 

Grounds. 

By Mr. SCUDDER, of New York : The petition of citizens of Pat- chogue and other villages on the south side of Long Island, asking 

that Pat chogue be made a port of delivery, to the Committee on Com- merce. By Mr. SHEATS : The petition of the boards of trade of Columbus, 

Mississippi, and Mobile, Alabama, for the improvement of the Tombin-bee and Tennessee Rivers, to the Committee on Commerce. 

By l\fr. SLOSS: The petition of t4e heirs of Henry Fulenweider, 

for compensation for services in carrying the United State mail, to 

the Committee on Claims. 

By Mr. SMITH, of Virginia : The petition of John Hamilton, of 

Baltimore, Maryland, for compensation for de truction of ice-house by 

United State troops, to the Committee on War Claims. 

By :Mr. STONE : The memorial of the North Saint Louis Savings 

Association, asking payment of 15,000 adva.nced to Russell, Majors 

& Waddell on acceptances of Ron. J ohn B. Floyd, Secretary of War, 

to the Committee on Claims. 

By M1·. THORNBURGH: The petition of D. F. Smith, for remuner- ation for horse and equipments lost in the service of the United States, 

to the Committee on Military Affairs. 

Also, the petition of William H. Edwards, for a pension, to the Committee on Invalid Pensions. 

Also, the petition of druggists of Knoxville, Tennessee, for the re- peal of the stamp tax on medicines, to the Committee on Ways and 

Means. By Ur. WOODFORD : The remonstrance of Clark Brothers & Co., 

Morris, Denning & Co., and other wholesale hat dealers, of New York, 

against any further extension of the Wells patent for forming hatbodies, to the Committee on Patents. · .Al o, several petitions of citizens of Brooklyn, New York, for the 

appointment of a commission of inquiry concerning the alcoholic 

liquor traffic, to the Committee on the Judiciary. 

IN SENATE. 

F RIDAY, J anuary 30, 1874. 

Prayer by the Chaplain, Rev. BYRON SUNDERLAND, D. D. The Secretary proceeded to read the Journal of yesterday's proceed- ings. 

l\Ir. INGALLS. I move that the further reading of the Journal be 

dispen ed with. Mr. DAVIS. I think we had better go through with the reading of 

the Journal. 

The PRESIDENT pro tempo're. The Senator from West Virginia objects. The reading will proceed. The Secretary continued and concluded the reading of the Journal 

of yesterday. ENROLLED BILLS SIGNED. 

The PRESIDENT pro tempore signed the following enrolled bills 

which had previously received t he signature of the Speaker of th~ House of Representatives : A bill (H. R. No. 1221) to confirm certain land titles in the State of 

Missouri ; and 

A bill (S. No. 89) in relation to the lines of telegraph connecting 

the Capitol with the various Departments of the Government. 

PETITIONS AND MEMORIALS. 

Mr. SCOTT presented the memorial of the Board of Trade of Philadelphia, Pennsylvania, protesting against any reduction of the usual 

annual appropriation for the preparation and publication of the 

Nautical Almanac; which was referred to the Committee on Appropriations. He also presented a memorial of the Wholesale Grocers' As ociation 

of Philadelphia, Pennsylvania, praying for certain modifications of 

the bankrupt law, or, if it cannot be modified, its repeal; which was ordered to lie on the t able. 

He also presented the petition of the Dauphin County (Pennsylvania) Medical Society, in favor of the enactment of a law giving the 

Medical Corps of the Army increa eel rank and pay, and opening the 

corps for appointment and promotion; which was referred to the 

Committee on :Military Affairs. 

He also presented the petition of Mrs. Susan Leach, of Blair County, 

Penn ylvania, praying to be allowed a pension; which was referred 

to the Committee on Pensions. 

Mr. CHANDLER pre en ted a petition numerously signed by citizens 

of Michigan, asking the extension of the money-order ystem to every 

post-office in the United States, with such a low rate of expense as shall be equitable and just toward the people; which was refened to 

the Committee on Po t-Offices and Post-Roads. · Mr. ALLISON presented a petition of citizens of Richland County, 

Iowa, praying for the appoin.tment of a commission of inquiry con- cerning the alcoholic liquor traffic, its relations to pauperism, crime, 

the public health, and general welfare; which was ordered to lie on the table. 

He also presented the memorial of the Chamber of Commerce of the 

city of New Orleans, Louisia-na, asking the enactment of such laws as shall authorize the Government to a sume exclusive control of all 

quarantine regulations, whether foreign or domestic; which was re- ferred to the Committee on 'Commerce. 

1\Ir. CLAYTON presented a memorial of the trustees of the Arkan- sas Indus?'lal University, asking for the passage of the agricultur!11-

college bill of l\fr. MORRILL, of Vermont; which was referred to the 

Committee on Education and Labor. . Mr. CONOVER presented a memorial of the Legislature of Florida, 

ih favor of appropriations for harbor and river improvements in the 

State of Florida; which was referred to the Committee on Commerce. 

He also presented a memorialof the Legislature of Florida, in f avor of the establishment of a mail-route in Volusia County, Florida; 

which was refened to the Committee on Post-Offices and Post-Roads. 

Mr. GORDON presented the memorial of Duff Green, of Georgia, 

suggesting a bill to be entitled "An act to pay the public debt by 

issue of a national currency;" which was referred to the Committee on Finance. He also presented the memorial of Columbus D. Smith, of Georgia, 

asking payment for medical services rendered United States troops 

in 1865 and 1866; which .wa.s referred to the Committee on Military 

Affairs. He also presented the petj.tion of Eugene Beebe, of the city of New 

York, praying for the issue of $100,000,000 of greenbacks ; which wa.s referred to the Committee on Finance. . He also pre ented the memorial of the governor of the State of 

Georgia, asking payment by the United States for the use of the West- ern and Atlantic and East Tennessee Railroads, the property of that 

State; which was mferred to the Committee on Claims. Mr. BAYARD. I pre ent a petition from bankers, merchants, and 

citizens of the city of Baltimore, Maryland, representing the ~'l>rm 

which they feel at the various propositions before Congress for the 

increase of the volume of the currency; declarina that they deem any 

additional issue of paper money, directly by the Government or indirectly by the national banks, to be hi~hly injurious to the interests 

of the nation; declaring also their belief of the great injury to the 

commercial interests of the country to re ult from the T>ersistence in 

the use of an irredeemable paper currency, and praying that no more issue of paper may take place, and that the greenbacks already out, 

of the so-called reserve, may be withdrawn as speedily a.s po sible. 

The petition is signed by Alexander Brown & Sons and numerous others, representatives of the national banks of the city of Baltimore, representatives of the largest commercial and banking interests of 

the city of Baltimore, all agreeing upon the same state of facts, and 

all urging the same treatment of those facts. 

Mr. President, I desire also to say that this petition is a precise 

duplicate of a petition pre ented within a few days in the other House 

from the city of New York, and that petition represented t he views of forty-six of the national banks of the city of New York, and of 

two trust companies in that city whose aggregate capital amounts to over 61,500,000; it represented the views of the life-insurance com- panies, with a capital of 9,000,000, and one hundred and twenty-six o·f the most wealthy and prominent bankers, merchants, and manufacturers of the city of New York; and all of the e signat nres, which were the signatures of the respective firms, were obtained in the course of two days. I pre ent these petitions, and move that they be referred to the Committee on Finance. 

The motion was agreed to. 

Mr. SCHURZ presented a resolution of the Legislature of Missouri, 

in favor of an appropriation for the construction of a custom-house and post-office building at Kansas City, and the e t:l.bli hment of a district court thereat; which was referred to the Committ ee on Public Buildings and Grounds. 

' 
CONGRESSIONAL RECORD.· 1033 

He also presented a resolution of the Legislature of Missouri, in 

favor of the enactment of a law granting to there idents on school 

lands in all the fractional townships numbered 67, in ranges 8 to 43 

west of the principal meridian, the b~ne:fits of th': act of May 20, 

1826 · which was referred to the Comm1ttee on Public Lands. H~ also presented a resoluti?n of the Le~islat~ . of Missouri, as~g an appropriation for the erection of a public buildmg at Kansa-s C1ty, 

to be used as a custom-house and post-office; which was referred to 

the Committee on Public Buildings and Grounds. 

He also presented a petition of citizens of Missouri, asking the .en- actment of a special law, placing upon ~he p~nsio.n-rolls Mrs. E~abeth Reidenbach, of. Osag': County, Missouri, WJ.do~ of Fred.erwk 

Reidenbach, late a pnvate m Company E, Second R~grment ery 

lllinois Volunteers; which was referred to the Committee onPens10ns. Mr. NORWOOD presented the petition of JosephS. Baynard and others of Savannah, Georgia, praying for the r epn.yment to them of 

:356.50 collected as direct taxes under the act of June 7, 1862, on the 

lands known as Muddy Creek plantation, Spanish Wells plantation, 

Hobkirk and Bra-ddock's Point plantation, situated upon Hilton Head 

Island in the State of South Carolina, and the restoration to them of 

the said plantations; which was referred to the Committee on Private 

Land Claims. 

Mr. RAMSEY presented the petition of a committee of the Board of 

Trade of Minneapolis, Minnesota, :praying an appropriation for ~he 

continuance of the work in the improvement of the Falls of Samt 

Anthony at t~t place; which was referred to the Committee on Com- merce. Mr. SUMNER presented the petition of A.. qr~ene, of Spring:fiel~, 

and other citizens of Massa-chusetts, and the pet1t1on of the Grand DIvision of Sons of Temperance of Massachusetts, an organizatiOJ?- rep- resenting9,322 citizens of the Commonwealth of Massachusetts, s1gned 

byEugeneH. Clap_P, grand worth~ patriarch, and Sar~:m~l W. I;I odg~s, 

grand scribe, praymg for the appornt~ent of ~ comm1Ss10n .of mq~nry 

concerning the alcoholic liquor traffic, 1ts rel!l'tion to paupensm,o~rme, 

the public health, and general welfare; which were ordered to lie on the table. 

Mr. GORDON presented the pe~~on of A· A.. Willett, of A.m~ricus, 

Georgia grandson and heir of J edidiah Willett, deceased, praymg to 

be indefnn.med for spoliations committed by the French prior t o the 

year 1801; which wa-s ordered t o lie on the table. .Mr. HAMLIN. I have had put in my "hands, Mr. President, am~­

morial addressed to t.he House and the Senate by the governor of this 

District in which he makes certain statements in relation to a memo- rial whlch was presented a few days since by the Senator from Ohio, 

[ Mr. THURMAN.] I ask that it be received by the Sena~e; .and ina~­

much as that memorial was read at length, to do equal Justice tot~ 

memorialist I ask that his memorial shall also be read, and then lie 

upon the table, together with the memorial presented by the Senator 

from Ohio. 

The PRESIDENT pro tempm·e. The paper will be read, if there be no objection. · The Chief Clerk read as follows : 

To the Senate and House of Representatives: 

Your memorialist, the ~overnor of the Distri.ct of. Co~umbia, respectfully epresents that, in common With other officers of Said District, he has been arraigned before your honorable body by two memorials of certain pretended tax-pa,;rers, in 

which your memorialist and his associates are charged with grave offenses. vhar~es 

so gravely presented, and apparen~y so gravely made, demand of your memorialist, on the part of himself and assomates, as a duty they owe to themselve!" and the 

good people of the District, to place before your honorable body certain facts of record and of public notoriety touching both the allegations made and the persons 

making them. 

Your memorialist speaking for himself and associates in office, declares that 

they have not sought, and do n_ot ~ow seek, to evade the fullest and. fairest investigation into the affillrs of the District; and as proof thereof theyremmd your honorable body that at every session of Congress smce the organization of the new ~overnment for the District, they have been before the. District Committee ~d C~mmittees on Appropriations of both -the S~na~ an.d House of Representativ~ With 

full exhibits of all the transa-ctions of said Dl.Strict; that at the second sess10n of 

the Forty-second Congress an investigation was o:dered by the House ~f Repre- sentatives on the 22d. .January, 1872, which was continued throughout the Winter and 

till May of the same year, when a report was made (No. 72) covering nearly one thousand printed pa.,.es, and embracin"' record evidence and oral testimony upon 

every substallti,al aifegation presented 1>y the memorialists of your honorabfe body at this session of Congress; that said investigation was regarded by the Forty- second Congress as an impartial, thorouj!:h, and searchinginqw..ry into every expena- itnre of the District government; of the prudence, wisdom, and honesty of the 

expenditure, and of the durability and valuableness to the District of the improve- mf'nts then made and proposed to be made; that at said investigation the entire 

pla11 of improvement complained of by said memorialists was examined and approved,'Md so reported by said coiii!D..lttee; that your memori~lisfl~a~d his asso- ciates were not only wa.rran+sd by said report to go forward Wlth therr plan, but 

they were further encourage . by appropriations maue by the Forty-second Congre s in furtherance of said plan, as ··ell also by the avparently universal approval of the 

whole country, and especially by ·~ larue ma:jorio/ of the citizens of the District of 

Columbia; that at the following and tlie as~ session o~ ~e Forty-secon~ Congr~ss, complaints having been made that the Dl.Stnct authonties were exceeding the lim- its of the general debt of the District, a second investigation was ordered, the r esult 

of which Will be found in House report No.7, third session. The confidence of 

Congress still remaining in the integrity of the District officers further appropriations were made. And at the present session of the Forty-third Congress your me- morialist invited an investigation, which, under the order of the House of Repre- sentatives is now beinu made, and covers every substantial allegation not heretofore 

finally and fully consi:i'ered. 

Your memorialist now insists that unless probable cause is shown for the exist- ence of the evils heretofore and now complained of, and which h:1ve been disproved before Congress, he and his associates ought not to be subjected, at great expense to the General Government and to the great detriment of the interests of the Dis- trict, to further needless and fruitless investigation. 

Your memorialist further represents that full and complete printed reports have 

been made to the President, as provided bllaw, showing in detail all t?e financial transactions of the officers of said Distric government; every ~x:pend1ture of the 

board of public works, with the date and name of person r eceivmg money; full, 

ample and complete reports of all the improvements made, of the chaJ.·acter and 

place ~here made and the cost thereof. There never has been any concealment on the part of your :dtemorialist and his assistants from the public ~f a single ?fficial 

trallsaction of said District government; there never has been a time when 1t was not within the power of any citizen of ~e District to challenge the wisdom o~ ~y 

improvement being made, or the expenditure of any money · and your memorialist 

declares that there is no substantial grievances complained of to your honorable 

body for which there is not aJ.nple r emedy provided by law through the courts of 

the District. Your memorialist would r espectfully represent to your honorable body that tho 

difficulties and embarrassments which have resulted from the factious and unrea- sonable opposition of certain citizens, of whom the memorialists complaining to your honorable body are a fair typ~ and pa~, ~?-ave been such as at ~e. to threaten 

the destruction of all gove~. nt m the DIStrict •. and hav.e .il"esulted m I~ calculable 

pecuniary clamage to the mtizens thereof. T~s oppos1tio~ arrayed Itself. e~en 

before the District government wa fully orgamzed; and while your memorialist, as he feels bound to do, presents to your honorable body some of .the vic~~itudes 

through which the District government has pas:red by r eason of this op~Sl.~lOn, he 

calls attention to the fact that from the begmnmg the :people of the District., and 

those most interested in its welfare, have sustained it With great unanimity. 

Your memorialist says that at the :fir t electi~n held under the organic act, the 

question of liberal improvements was made an. Issue, and was approved by a vote of several thousand majority in favor of the plan then discussed. Later, on the assembling of the Legislature, this plan was made known to said body by message of the governor and at once became the topic of general discussion. It had received 

the approval of' an advisory board of eminent Government officers and private citi- zens and was enacted into law by act of .July 10, 1.871. Every effort was D?-a~e to defeat this le!rislation; fulling in which, resort was had to the courts, and an mJunction obtain ed~ chiefly on the gro~~ that th~ proposed loan had not received the 

indorsement of the people. Unwilling to wait the slow process of law, another act was passed submitting the question to the people. The oppo~ition organized in 

every part of the District, and attacked not only the plan of UDprovemonts, but 

assailed the personal character and integrity, both in pnvate and public life, of the 

officers whom the President had appointed and the people had elected to ca.rq- ont the organic act. Not one dollru.: had thus far been e:xpen<:Ied, nor had these office.rs 

been aJforded a single opportunity to show whether they mtended an hone!"t or dishonest administration of affairs. .After the fullest Callvass of the question, only 

1,213 votes in the whole District were cast against the lo~ and improvemen~ . .Almost the entire working season was thus consumed when, m November, the District authorities placed the loan upon the market; whereupon th<: oppo ition, aided 

by the pecuniary and moral support of some of those now complammg to your honorable body, sought to discredit the District in the money markets of the world, 

and prevent the negotiation of its bonds. . . Upon the assembling of the last Congress an effort was ma.de by ~hese factiom~ts 

to suspend the functions of the new government and thus to strike a blow at Its 

very existence, and destroy its credit both at home and abroad. The attempt, ~~wever failed receiving no sympathy in your honorable body when the proposition was presented. A.t the same time a memorial was offered in the House of Repre- sentatives demanding an investigation into charges covering, substantially, the 

saJ.ne complaints as have been re~e~tly ~e to ~om; honorabl~ .body, the result of which was a report completely vmdicating the District authonties. 

Your memorialist further says that, substantially, every chaJ.·ge of unlawful exer- cise of power by the District a!lthoritie~ now comp~ed _of has be~~ presented to the courts of the District, and ill every mstance the District authonties have been sustained ; that at every l~tion, of which there ha:ve. een several, ~e peopl<: of 

the District have sustained Its officers by large maJOrities; that. no~thstancl:iJ;lg 

attacks throuuh the public press and the utmost efforts of the factiomsts of the Dl.S- trict already "'alluded to, which, for malevolence, nnscrupulousnes , and want of 

truth have been unparalleled, still your memorialist believes that the officers thus 

assailed have not forfeited the respect of the public at large, or of the citizens of 

the District, but would be fully vindicated before your honorable body if their \oices 

could be heard. 

Your memorialist denies that the opposition now demanding a third or fourth 

investigation are law-abiding citizens, or are seeking the good of the District; but 

says their whole purpose is either to overlo/owthe present form of gover~ent or to cause the removal of officers whose appomtment they cannot them elves dictate. 

Your memorialist further says that before giving heed to the complaints marleto 

your honorable body they shoUld be presented at l~st by those who come wi.th • clean hands and are willing to abide by the laws which they c~~.e ha.ve been VIOlated; whereas, as will be seen by th.e exhibit hereto a~ched, cer?D-od by the super- intendent of assessments, the fact IS shown that of said compla;mants ~h~ largest 

property-holders naJ.nely, Messrs. W. W. Corcoran, George W. Rig,gs, Willi:1m Gun- ton Marshall B~own Edmund Handley, William B. Webb, H . .N. Ea by, Geor~"'e E. :kirk, Charles W. Matthews, He S. Davis, A.. AdaJ.nson, William Rutherlor 

H. K. R.andall, S. D. Cas~eman, ad Col~ bus ~exander, have pe:sonally pai nothin"' on account of the rmprovements agaJ.nSt which they protest, ill defiance of 

the Ia.J' of Coni5I"ess approved February 21, 1871, specifically :providing "that upon 

the property aujoining, and to be especially benefited by the Improv~ments author- ized by law, there shall be assessed and collected a reasonable proportion of the cost, not exceeding one-third thereof." 

The pecuruary ability of said individuals to pay the aJ.nount so ass.essed !l!ffi,inst 

them being unquestioned, they stand b6Iore your honorable body as willful VIo'iators 

of law; for haVIng, as hereinbefore set f~rth, appealed 1".? the courts and suffere.d defeat upon the identical issues embraced m their memorial, they cannot plead Igno- rance of the law or want of means to comply with its demands. 

Your memorialist, on behalf of his associates and the patriotic and publicspirited people of the Di trict of Columbia, points with pride to the increa.sed.p;os- perityof the District under its new government. In spite of unparalleled oppoSition; 

of malicious and criminal misrepresentations; of attempts on the part of the op- position to arouse the :people to the commi sion of public crimes- going to the ex- tent even of tJrreat ll,Ul~ the lives of your memorialist ancl his a sociates, and 

notwithstanding a deter:Dined and implacable attack on the pa.rt of certain news- papers of the country, sustained from week ·to week by malicious and ~1 false- hoods, the capital of the _nation has been tz:an.sfo.rmed from an unattractive, un- healthy, unsightly place mto t~e most.beautiful mty of .our country; the most desirable for re idence and has gwen eVIdence of prospenty as great as that of an:v city of the Union. :fu the midst of all ita trials and all opposition, and tbe midst of all 

the alleged burdens of taxation, threatening confiscation, as has been c.harged, your memorialist wquld call attention to the fact, as a complete e:t?ta~on of all the 

char"'es brouglit auainst him and his as ociates, that the transa-ctions ill real estate in th~ city of Was'billgton have increased from ~,927,000 in 1870 to 12,195,300 in 

1873. . . . Disclaimin"' all purpose to evade any reasonable and pro.per illvestiga?ons, ~our 

memorialist s~bmits whether, under all the circumstances, 1t would be fa1r ancl JUSt to the people of the country, to the :people of the District, and to your memorialist 

and his associates, to enter upon an mquest without some probable cause shown of 

the truth of the charges made. 

ALEXANDER R. SHEPHERD. 

Mr. THURMAN. I ask to h.ave the last sentence rea-d again. 
1034 CONGRESSIONAL RECORD. JANUARY 30, 

The Chief .Clerk r~ad as follows : 

Disclaiming all purpose to evade any reasonable and proper investigation, your memorialist submits whether, tmuer all the circum8tances, it woulu be fair and j Mt to the people of the country and the people of the District, and to your memorialist 

and hls as ociate8, to enter upon an inquest without some probable cause shown 

of the truth of the charges made. 

Ur. THURMAN. I will thank the Secretary to read the :first sen- tence of that memorial. 

The Chief Clerk read as follows : 

Your memorialist, the governor of the District of Columbia, respectfully repre- sents that, in common witb other officers of said government. he has been arraigned before your honorable body by two memorials or certain pretended tax-payerslli. THURMAN. That will do, lli. President. .A.t the proper time I 

shall a k the indulgence of the Senate to allow me to make some re- marks upon that very extraordinary paper, for a very extraordinary 

paper it is, which begins with settina- out that the persons who have 

heretofore petitioned Congress on thls subject are "pretended taxpayers;" a very extraordinary paper it is~ ~hich professes all the 

while to desire investigation and to have skirts perfectly clean, and 

yet submits a long argument against any investigation at all; and a very extra-ordinary paper it i , which says that the charges made in 

the memorials presented by me have all been investigated by the 

courts, when many of tho e charges could not come before the courts at 

all, and have not come before them; and a very extraordinary paper 

it is, which says that the House of Repre entatives at this session 

h ave ordered an investigation that covers all the grounds of the petitions that have been pre en ted to this body, when the fact is that that 

investigation is an investigation merely of the books of the officers 

of this District. · :Mr. EDMUNDS. What have we to do with that question in either 

case'f 

Mr. THURMAN. This memorial brings it here. But, sir, I do not 

wish to speak at large on this subject now, for it would occupy much 

time, and require preparation. I suppose the Senator who presents 

this memorial will be willing that it may, with the petitions which 

have been heretofore presented, lie on the table until the proper time comes for action. Mr. HiliLIN. That was the motion I made. 1\fr. CONKLING. Defore this matter pa es away I wish to say a word, with the indulgence of the Senator from Maine, not touching 

the merits of t his or the other petitions relating to a subject in which 

I feel no interest except that justice may be done; but to note the 

fact that no reque t has been made to print t he memorial just rea-d. 

Had such a request or motion been made, I should have objected, as the Senator from Rhode Island objected some days ago to the printing 

of a memorial which I thought was of exceptional importance, and as other Senators have objected in other instances. I would attract 

the attention at least of the Senate to this point, for a reason I will 

state. On a recent occasion, when a memorial relating to affairs in this 

District was presented and read at length, I think-- :Mr. SHERMAN. Read in full. 

:Mr. CONKLING. The Senator says it wa.s read in full, and no objection was made. .A. suggestion rather than a motion came from 

the Senator from Ohio farthest from me [Mr. THURMAN] that it 

should be printed, and I reminded him that the rule and practice of 

the Senate was the other way, and that the printing of Jletitions, even in important cases, had been refused in all cases alike dUTing 

the present ession. Mr. THURMAN. Will the Senator allow me to correct him' 

When I presented the :first petition, I a ked that it might be printed. 

Objection wa made to that, and I said I was indifferent about it. .A. 

motion was then made to print by the Senator from Delaware, [Mr. 

SAULSBURY,] and that motion wasreferred to the Committee on Printing. That committee reported adversely to printing it, on the ground 

that it was not customary to print petitions of private individuals. That led to some little discussion, which was going on when I came into the Senate Chamber-- Mr. CONKLING. .A.s ths Senator is now himself interrupted by 

another Senator, I wish he would let me say what he is anticipating, 

and what I rose to say the Senator by his interruption prevents a statement as much in his l)ehalf as in mine. I beg him to allow me to proceed for a moment, and then I will yield the floor. I was about to remind the Senate of the facts to which the Senator 

has a-dverted, and I had gone so far as to ay that he made the sug- ge tion, rather than the motion, that a memorial should be printed, 

when an objection was made, the objection being to call his attention 

to the fact that it was not the usage of the Senate to print memorial , and that printing had been refused in all cases. Sub equently the 

Senator from Delaware made the motion to print thememorjal. Under the rule the motion went to the Committee on Printing; and a 

r eport was made afterwards, that it should not be printed for reasons assigned, and treating it as all other memorials and petttions what- soever had been treated. Thus the petition was received and treated 

just like all other petitions, except that it was read in full-a con- sjderation not u nally be towed upon petitions. Mr. President~ having stated the facts I will now state my motive for bringing the matter to the attention of the Senate. There has been sent out generally to the country (my attention 

h as been brought to it in papers printed in different States) a statement that on the occa ion in question the Senate refused to receive the petition, refused to allow it to be read, and excluded it altogether. I might say that the public journals which have made tbe ·e state- ments, have not, I think, paid a compliment to their own intelligence. The suspicion suggests itself that the writers of these statemen · do 

not understand that, imbedded in the Constitution it elf, among the 

fundamental rights of the people, beyond the reach of the S nate, is 

the right of petition, which no Senate or House would dare thus to 

trample on. Notwithstanding the groundlessness and ab urdity of the statement, 

the public has been informed, and probably many persons have not 

stopped td doubt it, that my honorable :friend from Ohio nearest me, 

[Mr. SHElUf.A....~,] by dint of his parliamentary skill-! believe it was called ''a parliamentary quibble" in several of the statements-! 

furnishing such feeble and secondary aid as I could, that we together 

induced or caused the Senate to refuse to receive a ·petition, to shut 

it out altogether, to refuse to have it read; and thereupon dismal 

homilies are hung, which, inasmuch as they relate only, or chiefly, to 

the honorable Senator from Ohio nearest me and myself per onally, I 

will not comment one. It seemd to me, as it seemed to the Senator 

from Ohio upon consulting with him, that it might be OUT duty to 

bring this to the attention of the Senate, and pos ibly su.cceed in bring- ing it to the attention of at least a narrow circle beyond, in onler that no portion of the public might from our silence suppose that the 

Senate of the United States bad trampled the Constitution under foot 

by refusing to receive a petition, when the truth is wholly otherwise, 

and when in the matter of printing, as in the case of a memonaJ 

presented by me for the Chamber of Commerce of New York, touch- ing a matter of grave magnitude, and as in all other case where a request to print memorials have been made, the Senate simply stood 

by its rule and said, let this petition be presented. let this pMticular 

petition be read at length, which rarely occurs, and let the enator 

who presents it refer it to such committee a he pleases; let it lie upon 

the table if he plea~es, and let it have its full force and effect in all re ~Yards . 

·-I will only add that I should not have brought this to the atten- tion of the Senate: had it been a matter which related to me alone, or to the Senator from Ohio. I have yettoreach thetimewh nl will 

occupy the attention of the Senate to deny allegations in newspapers 

merely personal to me. But I thought the ver ion given to this matter 

gave it larger than personal dimensions, and that a correction was due to the Senate and to the editors of the papers honestly misled, like 

the editor of the Brooklyn Argus, a paper edited, I think, with intelligence and fairness; be evidently has been so far imposed upon as to accept the statement, and he has not yet ceased to r eiterat e his indignation and amazement that such a thing could occurr in the 

Urn ted States Senate, as well he might; and I hope I have not wholly 

wasted time in calling attention to the fact that no such thing did 

occur, and no such thing by possibility could occur in any ca e in this 

body. 

The PRESIDENT pro tempore. This memorial will lie on the table. 

rAPERS WITHDRAWN .AND REFERRED. 

On motion of J\.Ir. RAMSEY, it was 

Ordered, That two memorials of the Legilllature of Dakota, dated January 24, 87~, and February 18, 1873, asking the improvement of the Red River of the North, 

with accompanying papers, be taken from the files and referred to the Committee on Commerce. 

On motion of lli. R.A.J\ISEY, it was 

Orde1·ed, That Mrs. Anna W . Osborne have leave to withdraw her petition and 

papers from the files. 

On motion of Mr. MORTON, it was 

Ordered, That the petition and papers in the CMe of R. S. McR~y be taken from 

the files and referred to the Committee on Pensions. 

REPORTS OF COMl\fiTTEES. 

Mr. BOREM.A.N, from the Committee on Claims, to whom was re- ferred the petition of Hiram W. Love, of J ohnson Connty, Iowa, pray- ing compen ation for cotton crop destroyed by the Army dming tho 

late war, submitted a report, acccompanied by a bill (S. No. 398) for 

the·relief of Hiram W. Love. The bill was read and passed to a second reading, and the r port was ordered to be printed. Mr. CHANDLER. I am instructed by the Committee on Commerce, to whom was referred the petition of citizens of the Unitell States a~king the enactment of a law giving precedence in the court of tho 

United States to proceedings for the redre of wrong of seamen, to 

report the same back, and a k to be discluu·ged from it further con- sider~tion, and that it be referred to the Committee on the Judiciary, ina much as it propose a change in the proceedings of the coUTts. The report was agreed to. 

1\fr. CHANDLER. The Committee on Commerce, to whom wa r ecommitted the bill (S. No. 87) to facilitate the execution of, ancl t o protect, certain public works of improvement at the mouth of the 

Mississippi River, have directed me to report the arne back with an amendment, and recommend its pas age; and as it is very importaut 

that the bill hould pass, I a k present action on it, if there be no obj ection. The Chief Clerk read the title of the bill. 

111r. ED:;\IUNDS. Let it be read at length. 

The Chief Clerk read the bill. 
. . ,_ 

1874. CONGRESSIONAL RECORD. 1035 

The PRESIDENT pro tempore. Is there objection to the present 

consideration of the bill f 

Mr. DAVIS. There is. The PRESIDENT pro tempore. Objection being made, the bill will 

lie over. 

Mr. BOUTWELL subsequently said: I should like to have the 

unanimous consent of the Senate to submit an amendment to Senate 

bill No. 87, and to move that the bill, as amended by the report of 

the Committee on Commerce, and with the amendment which I now propose, may be printed for the use of the Senate. The PRESIDING OFFICER, (Mr. FERRY, of Michigan.) That 

order will be made. 

Mr. DAVIS, from the Committee on Claims, to whom was referred 

the petition of :Mrs. Sarah Brooks, praying compensation for injuries 

inflicted on her person by Indians in the State of Kansas, reported 

adversely thereo)l, and asked to be discharged from its further consideration; which was agreed to. Mr. SARGENT. I am directed by the Committee on Appropriations, to whom was referred the bill (H. R. No. 1013) making appro- priations for the naval ervice for the year ending June 30, 1875, to 

report it with amendments ; and I give notice to the Senate that I 

shall call it up early next week and press for action upon it. 

Mr. PRATT, from the Committee on Pensions, to whom was referred 

the petition of Ruth Ellen Greeland, widow of John H. Greeland, 

late captain Fourth Artillery, United States Army, praying for a pension, reported adversely thereon, a.nd asked t o be discharged from its 

further consideration; which was agreed to. He also, from the same committee, to whom was referred the bill (S. 

No. 42) granting a pension to Caleb A. Lamb, late a musician in Com- pany E, Forty-sixth Regiment of Indiana Volunteer Infantry, reported 

it without amendment, and submitted a report; which was ordered 

to be printed. 

He also, from the same committee, to whom was referred the bill (S. 

No. 387) granting a pension to Captain Benjamin Farley, Company C, 

Fifth Indiana Cavalry, reported it with amendments, and submitted a report ; which was ordered to be printed. Mr. INGALLS, from the Committee on Pensions, to whom was re- ferred the petition of William T. Parker, asked to be discharged from 

its further consideration, and that it be referred to the Committee on Claims ; which was agreecl to. 

He also, from the same committee, to whom was referred the petition of Karl Mook, praying the payment of arrears of pension to the 

heir of August Kessler, asked to be discharged from its further con- sideration, and that it be referred to the Committee on Military Affairs; 

which was agreed to. 

He also, from the same committee, to whom wa-s referred the petition of Colonel William C. Ives, late of the One hundred and sixteenth Regiment Indiana Volunteers, praying for a pension, reported 

adversely thereon, and asked to be discharged from its further con- sideration ; which was agreed to. Mr. WRIGHT. The Committee on Civil Service and Retrenchment, to whom w.as referred the bill (S. No.9) to repeal so much of 

the act .. of March 3, 1873, a-s increases the salaries therein named, 

have directed me to report it back; and inasmuch as.the same sub- ject-matter has been disposed of by a House bill, t o move that this 

bill be indefinitely postponed. 

The motion was agreed to. 

CONGRESSIONAL RECORD. 

Mr. ANTHONY. TheCommitteeonPrinting, towhomwasrefe:ITed a concurrent resolution of the House of Representatives for the printing and distribution of the CONGRESSIONAL RECORD, have instructed me to report it back with amendments; and I ask for its present con- sideration, as Senators and Members are anxious to know what is to 

be done with the RECORD. 

There being no objection, the Senate proceeded to consider the following concurrent resolution of the Honse of Representatives: 

Resolved by the House of Representatives, (the Senate concurring,) That the Con- ~essional Printer be instrncted to· furnish to each Senator, and to each Member and 

Delegate in the House of Representatives, twenty-four copies of the CONGREssiO 'AL 

RECORD, or of· any such like official r eport of tha debates in Congress as may hereafter be authorized by law, either daily, as originally published, or in the revised 

form, without binding, or in bound volumes, or part in each form, as eaeh Senator, 

Member, and Delegate may elect. 

The Committee on Printing proposed to amend t he resolution so as to make it read : 

That the Congressional Printer be directed to furnish tlrirty-one hundred copies for the use of the Senate, .and seventy-two hundred and fifty copies for the use of 

the House of Representative , of the CONGRESSIONAL RECORD, or of any such other 

like official nublication l;)f -the debaw in Congress as may hereafter be authorized uy .aw, e1ther daily, as originally published, or in the revised form, without binding, or in bound volumes, or part in each form, as eaeh Senator, Member, and Delegate receiving the same may elect. 

The amendments were agreed to. 

Mr. ANTHONY. I wish t he Senate to understand the resolution. 

The number assigned to the House of Repre entatives is the same that th~y ngw have, and which is fixed in the resolution which they 

sent over to us. The number assigned to the Senate, which of this 

document has been always much larger than to the House, has been 

cut down one-half. The number assigned to the Members of the 

House, and Delegates, is twenty-four each, and to the Senators forty each. It has always been customary to supply certain documents 

more largely to the House, and certain other documents more largely 

to the Senate, per capita. For instance, the Agricultural Report has 

always been furnished much more numerously to t he House than to 

the Senate. The Congressional Globe was always furnished more nu- merously to the Senate for very evident rea-sons, as Senators are ex- pected to supply State institutions, and also to supply some persons, newspapers, or libraries in districts where the member of the House 

and the Senator are not of the same politics. This resolution, if passed, 

cuts our supply down one-half-arid leaves the House as it was, putting ours at forty copies and theirs at twenty-four each. The resolution, as amended, was agreed to. 

POSTAL-CAR FACILITIES. 

.Mr. WINDOM submitted the following resolution; which was con- sidered by unanimous consent, and agreed to: 

Resolved, That the Postma-ster-General be directed to report to the Senate the 

number of postal-car clerks and employes :qow employed on the lines between 

Washington and New York, New York and Boston, between New York, Albany, 

Buffalo, and Suspension Bridge; the gross amount of their annual compensation, 

the amount paid for the transportation of the mails on said lines, and what additional compensation the railroads demand for this service; also the number of 

daily express trains on each of said routes, and what reduction of the expense of 

the mail service and what increase in the frequency of the service and greater dispatch in the delivery of the bills can be effected by the withdrawal of the postal cars from &aid routes and substituting a more frequent service by transmitting the 

mails on all express or local trains rnnning, or that may hereafter be rnn, over said routes. 

PRINTING OF A DOCUMENT. 

Mr. BOREMAN. I have received a statement from the Secretary of 

the Treasury in regard to the expenses and charges upon the Treasury 

of each of the Territories. It became necessary for me to have this 

information on account of matter before the committee of which I 

have the honor to be chairman, and I ask that it be printed. I think 

it is a document that ought to be put in a bound volume, for the information of Senators. The PRESII)ENT pro ternpore. The order to print will be made, if 

there be no obj ection. BILLS INTRODUCED. 

Mr. FRELINGHUYSEN asked, and by unanimous consent obtained, leave to introduce a bill (S. No. 399) concerning the practice in terri- torial courts and appeals therefrom; which was read twice by its 

title, referred to the Committee on the Judiciary, and ordered to be 

printed. 

Mr. BOREMAN asked, and by unanimous consent obtained, leave to 

introduce a bill (S. No. 400) for the relief of the trustees of the Methodist Episcopal church at New Creek, West Virginia; which was read 

twice by its title, and referred to the Committee on Claims. Mr. MORRILL, of Maine, (by request,) asked, and by unanimous 

consent obtained, leave to intl:oduce a bill (S. No. 401) to establish a uniform registry of sea-going ves els, to afford protection to life on ship-board, and to govern rebates in duties on merchandise damaged on the voyage of importation; which was read twice by its title, re- ferred to the Committee on Commerce, and ordered to be printed. 

l\Ir. NORWOOD asked, and by unanimous consent obtained, leave to introduce a bill (S. No. 402)to restore the franking privilege; which wa-s read twice by its title, referred to the Committee on Post-Offices 

and Post-Roads, and ordered to be printed. :Mr. INGALLS asked, and by unanimous consent obtained, leave to 

introduce a bill (S. No. 403) confirming the title in lands to persons 

claiming under the homestead law in all ca-ses where such claimants 

have settled on said lands in good faith and made valuable improve- ments thereon; which was read twice by its title, and referred to the 

Committee on Public Lands. 

GENERAL 0. O. HOWARD. 

Mr. MORRILL, of Maine. I ask leave, without previous notice, to 

introduce a joint resolution authorizing a special court of inquiry 

concerning General 0. 0. Howard, and I should like to have it read. Mr. SUMNER. Should not that be a bill, under our new rule, the 

understanding being to do away as much as possible with joint reso- lutions Y 

The PRESIDING OFFICER, (:Mr. FERRY, of Michigan, in the chair.) 

The Chair understands that to be the rule~ It should be in the form 

of a bill. Mr. MORRILL, of :Maine. Very well; let it be amended accord- ingly. . There being no objection, leave was granted to introduee a bill (S. No. 404) authorizing a special court of inquiry concerning General 

0. 0 . Howard; which was read twice by its title. 

l\1r. MORRILL, of l\faine. I ask. that the bill be rea.d at length for 

information, and then I shall ask for its present consideration, if there 

be no objection. The Chief Clerk r ead as follows : 

B e it enacted, <f:c., That the President of the United States be1 and is hereby, au. thorized and requested to convene a court of inquiry, to consiSt of not less than 

five officers of the Army, whose duty it ehall be when so convened to fully investi- gate all the charges against Brigadier-General 0. 0. Howard contained in the com- munication of the Secretary of War to the Speaker of the House of Representatives of the date of December 5, 1873, and to report their opinion as well upon the 

moral as upon the technical and legal responsibility for such offenses, if any, as may be iliscovered. 

Mr. ·MORRILL, of Maine. Mr. President, I d~sire to make a single 

remark, and then to a-sk the present consideration of this bill. 

. 
I 

1036 CONGRESSIONAL RECORD. J ANUARY 30, 

Public attention has been called to the management by this distinguished officer of the affairs of the Freedmen's Bureau while at the 

head of that service, and certain proceedings have been instituted in 

relation to it which I am advised this bill, if passed at the present 

time, will facilitate. Therefore, as a matter of public interest, as also a matteT which I think due to that officer, and with a view of facil- itating that inquiry, I introduce this bill; and if there be n o objection 

I should like to have it passed upon. There being no objection, the Senate, as in Committee of the Whole, 

proceeded to consider the bill. The bill was reported to the Senate without amendment, or dered to 

be engrossed for a third reading, and read the third time. Mr. WEST. It is proposed to pass that bill without any reference to a committee. It occurs to me that we are infringing on the usages 

of the .Army in this case. Mr. LOGAN. I will state to the Senate that the Senator from Maine 

submitted the resolution to me, and I said to him that I did not desire 

its reference to the Committee on Military Affairs, because I thought 

it was a resolution that ought to pass, and referring it to the committee and bringing it back would only take up time. Hence I sugge-sted 

to him to introduce it and ask for its present consideration; and I will 

state, as I am up, the reason for it . .A.s I understand, the period named in the statute of limitations has 

expired, so that the Secretary of War cannot convene a court-martial 

for the purpose of trying these charges. Therefore the necessity arises 

for a bill or resolution being passed by Congress to give the authori- zation to the Pre-sident to call a court. That being the only question 

involved, I suggested to my friend from Maine to have the bill passed 

without reference to a committee. 

Mr. WEST. It is very true, as the chairman of the Military Com- mittee states, that if the statute of limitations has precluded a remedy 

in this case a new statute would be necessary; but there is no stat- ute that requires to be passed in order to institute a court of inquiry, 

which I understand this bill to provide for. The Senator from illi- nois speaks of a court-marlial. He.re is a provision that the President 

of the nited States shall convene a court of inquiry, and I ask him 

if there is any statute that either prohibits that or requires it, or whether it is necessary that one should be passed to authorize it'f It 

is optional with the President to order one, as I understand. · :Mr. fORRILL, of Maine. Of course if any gentleman on the Military Committee desires its reference, I have no obj ection ; but it 

seemed to me a matter so obvious that a reference might not be nec- essary. The Senator from Louisiana perhaps was not in when I made 

the observation that this is done to facilitate proceedin~s which 

may be taken elsewhere; and I am a.O.vised that if this be <lone here 

it would facilitate- not originating here, but it originates in a com- munication to the House of Representatives made by the Secretary of 

War, which is referred to in this resolution. Its passage here will 

facilitate proceedings which are being taken elsewhere in harmony 

.with this, as I am advised. Still, if any gentleman desires to mak e the motion to refer, I shall not object. MI·. WEST. I shall not make any motion to commit to a commit- tee, but I will ask that the matter be held in abeyance for a few mo- ments, until I can 'ket some further information on th e subject. We can take it up again. . Mr. MORRILL, of Maine. I do not object to that. 

The PRESIDING OFFICER, (Mr. FERRY, of Michigan, in the chair.) 

Then the bill will be laid aside for the present. · 

POINT LOOKOUT RAILROAD. 

Mr. SUMNER submitted the following resolution ; which was con- sidered by unanimous consent, and agreed to : Resolved, That the Committee on the District of Columbia be instructed to con- sider if any further legislation is needed to protect theinterest.s of the United States 

in the lands of the Government Hospital for the Insane of the Army and the Navy, 

and also the riparian rights of the United States on the Anacostia and Potomac Rivers atmched to such lands, so fur as the same are impaired by the Point Lookout 

Railroad. 

ADJOURNMENT TO 1\fOl\TDAY. 

On motion of Mr. EDMUNDS, it was 

Orde1·ed, That when the Senate adjourns to-day it adjourn to meet on Monday next. 

. PRESIDENTIAL APPROVAL. 

A message from the President of the United States, by Mr. 0 . E . BABCOCK, his Secreta,ry, announced that the President had, on the 29th 

instant approved and signed the bill (S. No. 61) providing for busts 

of the late Chief Justices Roger Brooke Taney and Salmon Portland 

Chase, to be placed in the Supreme Court Room of the United States. 

SENATOR FROM LOUISIANA. 

The PRESIDING OFFICER. The unfinished business of ye-ster- day is before the Senate, being the resolution in relation to tho aclmis- sion of 1\u·. Pinch back as Senator from Louisiana. The Secretary will 

report the resolution and amendment. The CHIEF CLERIL The resolution submitted by Mr. MORTON, on the 26th of J anuary, is u.s follows : Resolved, That the credentials of the Hon. P . B. S. Pinchback be referred to the 

Committee on Privileges and Elections; that the committee have ~ower to send for 

£:~~~~J'~llis s:g ~l~~~~cted to inquire into the conducto said Pinchback 

Mr. CARPENTER resumed and concluded the speech begun by him 

ye-sterday. His speech in full is as follows : · Mr. CAR~ENTER. Mr. Pl'esident, I have no ambition to make a 

speech to-day, and shall not attempt to do so. An Encrlish writer, 

intending to be very severe, has paid Americans an unintended com- pliment when he says that no American can make a speech unless he can glorify his country about something. Sir, I trust the glOl'y of 

America will long remain to inspire American eloquence. I trust the 

day is far distant when our bards shall sing and our orators lament the 

decadence of American grea,tness. But, sir, unfortunately, in this 

business there is nothing to call forth songs of joy ; nothing to inspire one note of exultation. I never reflect upon the present attitude of the 

United States toward the State of Louisiana without mingled emotions 

of sorrow a~d shame. It was my purpose, at the commencement of 

the session , to say nothing in regard to this subject; but having been upon the committee which investigated this matter at the last session, and having prepared the report, I may, without vanity, suppose that 

I am more familiar with the facts of the case than Senators who were not upon the committee, and ii is perhaps my duty to make a plain 

statement of the case to the Senate. 

The Senator from Indiana [Mr. MORTON] opened the debate on this subject with his accustomed skill. That Senator, when he leads 

in the right direction, moves with such power, that it is an easy task 

to follow; but when, as he rarely does, he goes wrong, he is a very 

troublesome opponent. The speech which he made upon this subject, on presenting the resolution, is an illustration of this. Fact and fic- tion, logical conclusions and audacious assumptions, are so mingled, 

that close thought and examination are necessaryto determine where 

the reasoning ends and the fallacy begins. 

Mr. President, I shall attempt this afternoon to reply to that speech, 

arid I shall attempt to state the facts of this case and the questions of law involved in it . The Senator commenced his rema,rks by controverting the state- ment of Senators that there had already been an lliTrestiO'ation of this subje<;:t. He says: "" 

I submit that they are both mist..'tkenThe Senator from New J ersey [Mr. STOCKTON] and the Senator 

from 1\fississippi [ Mr. ALCOR...'{] are alluded tothat this question has never been before tho committee, nor has it ever been before 

the Senate ; and so far as that volume of testimony is concernedMeaning the report of the committeewhile I have no sort of o~j~ction to anybody.referrin~ to it for any purpose, it is no part of the res ge.~tm; It IS not a part of this ca.se; It was taken before a different 

commi1itee. The committee has been twice reorganized since that time, It was taken at a former session of Congress, in a proceeding to which Mr. Pincbb:wk was not a party; and for which he is nowise responsible; and while it is here for r efer- !l~ce, as every do~ument in the document-room is and every book in the library is, I tis no part of this ca.se. 

Mr. President, let us see about this. I hold in my hand the credentials of Mr. Pinchback and the credentials of Mr. Ray, Mr. Kellocrg 

signing both as governor of the State, and certifying in one ca"" e that on the 15th day of January, in the year of our Lord 1 73, the 

Legislature of that State elected Mr. Pinchback for the term to com- mence on the 4th of 1\fa,rch, 1873, and in the oth& that .the sa,me. Legislature, on the same day, elected 1\fr. Ray to :fill the vacancy 

occasioned by the resignation of Mr. Kellogg. These credentials how 

that these gentlemen were elected on the same day. Ir. Ra.y presented his credentials at the last regular session of the Senate and 

claimed his seat. 1\fr. Pinchback presented his credentials at our extra session last spring, and now claims his seat. 

The Senator from Indiana, speaking of Pinch back's rights, says: 

The first proposition that I present on the resolution that I have offered is that Mr. Pinchback is entitled, upon his credentials, to be sworn in and take his seat as a member of this body; that he present-s what is called a p1·ima facie ca e, and 

UP,On that case ho is entitled to be sworn in, and if there ' are grounds of contest, 

either beca.use he was not elected by the right Legislature, or was elected b:v fraud or bribery, or that there was not a quorum of the two houses present, or ·that he was not e'iectedin conformity to the act of Congress of 1 G6, tho e grounds of con- test can only be urged after 'he has been sworn m and taken his seat, &c. 

·The Senator from Indiana was chairman of the Committee on Priv- ileges and Elections when Mr. Ray came here in February last and 

presented his credentials. Why was not 1\h. Ray seated on a prima 

facie case! Then, if ever, we had a pt•intafacie case; we had this cer- tificate from the pretended governor of that State, under what pur- ports to be the great seal of the State, in due form, and certifyiugto 

the election of Mr. Ray. Why was he not seatad on his prim,a facie ca.se f We all know why. The air was filled with rumors, and Sena- tors were disturbed with doubts whether there was any Legislaturo 

in that State, whether there was any governor of the State, whether 

there was anything valid in the parchment which was laid upon onr table; and when Mr. Ray's credentials were referred to the Cotrunit- tee on Privileges and Elections, a Senator- and I think it was the 

Senator from Indiana- offered a resolution requiring the committee 

"to inquire and report to the Senate whether there is any exi ting 

State government in Louisiana, and how and by whom it was consti- tuted." It was because the Senator from Indiana doubted the exi t- ence of a lawful Legislature to elect 1\Ir. Ray t.hat he offered this res- olution; it was because we all disbelieved the fact or doubted it 

that the resolution was carried unanimously in the Senate, and tho 

whole subject referred to the Committee on Privilege and Electious. 

The committee devoted weeks to the investigation, and reported to 

the Senate ten hundred and ninety-four pages of testimony, justifying every apprehension as to the legality of the Legislatnr . The 
1874. CONGRESSIONAL RECORD. 

committee also recommended the adoption of the ·following resolutions : 

R~olved, (first,) That there is no State government at present existing in the State 

of Louisiana. . Resolved, (second,) That. neither John Ray nor W. L. _McMillen is entitled to a seat in the Senate, neither ha.vmg been elected by the LegiSlature of the State of Louisiana. 

And the committee reported a bill to provide for an election of 

State officers and members of the Legislature for that State. So far as reo-ards the legality of the Kellogg government, the report was conc~ed in by all the members of the committee, except the ~ena­ tor from Indiana. Mr. Trumbull, then a member of the coiDID.lttee, 

dissented from the report made by the majority upon the ground that 

McEnery and his a-ssociates were entitled to be recognized. Mr. Hill, 

then a member of the committee, dissented from the majority in re- gard to ordering a new election, and proposed other relief ; but the 

committee, with the single exception ?f its chairman, w~re of t~e 

opinion that there was no governme~t ill the _State. So, siT, I sa¥· It 

is entirely too late to talk about seating Mr. Pinchback upon_apnmw 

facie ca-se. His prirtta facie case is overturned. The presumptiOn that 

might spring from reading these papers is rebutted by the full proof 

of the fact that a committee of this body unanimously, except one of 

its members, has repo:J:i;ed to you, and that report lies upon your t~ble 

to-day or in your document-rooms, that there was no State LegiSlature ~d there was no State government in Louisiana on the 15th day 

of J anuary last, when it is pretended Pinchback was el~cted. . Again the Sen:1tor says this testimony was not taken m Mr. Pillchback's c~ e; it wa-s taken in Mr_. Ray's case,_ a~d th~ref_OI:e Mr. Pinchback is not to be affected by It. Why, srr, ill a JUdicial court, for reasons that pertain to such tribunals alone, the testimony taken in a case between Smith and J ones cannot be used in a case between 

Brown and Gray, for the reason that each is entitled to cross-examine 

witnesse whose testimony is to affect him. 

Mr. MORTON. I desire to correct the Senat01: in one particular. The re olution instructing the committee to inquire whether there was any State government in Louisiana was offered on the 16th of Janu- ary, 1873, and the credentials. were _not _presented to the Senate until some time afterward. That illvestigatwn was already ordered before 

the credentials were presented to the Senate. :Mr. CARPENTER. That is wholly immaterial. I thought it was after the credentials were presented. I thank my friend, however, for 

making that suggest_ion,_ because if he is right it ends the objection 

that it was a proceeding ill Mr. Ray's case, and therefore cannot affect 

Mr. Pinch back. If the investigation had no reference to Mr. Ray's 

case; if it was an independent proce~ding ord~red by the Sena.te .to 

ascertain :.m important fact upon which ~e IDight be c~ed to le~ISlate, then it binds all the world; all mankind were parties to that illvestigation. Mr. MORTON. I said it was before th e credentials of either were presented. Mr. CARPENTER. Very well; thenitwasnotaproceedinginRay's 

case, and Mr. Pinch back was a-s much a party to the proceeding as any 

other citizen of the United States. Mr. MORTON. In the ::Lme wayexactly. · Mr. CARPENTER. I do not claim that it affects l\!r. Pinchback more than ::.my other citizen. I claim that it affects everybody. In regard to the distinction I am considering between the methods 

of proceeding in legislative bodies and judicial courts, let me read from 

Lewis's Rea onings and Methods in P olitics : 

The subject of judicial evidence has been treated by jurists with more or less 

fullne s since jurispruclence. became a science; but. it has, ~hapst been elab~rnted 

in more detail, and bas received a more systematic form, m Eng.Land than m any other country. This has been owing to peculiarities in the procedure of our co~ 

of common law which neetl not be liere noticed. With respect to our present subject the most ~portant rule of evidence in the law of England is that which pre- scrib s the exclusion of hearsay ~timony; that. is to say, of statements o~ fact 

made by the witness, not from his own observation, but from the observation of 

others. 

* * In judicial proceedings, therefore, where the facts are determined, not by official 

a.,.ents of the government but by the testimony of witnesses taken ca-sually from 

tife midst of the community, the gene~l principle is recogJ?-ized J?y our law th~t the witness must speak to an event which occurred under hiB notice, and mthin 

the reach of his senses. · 

* * * The proc s of ascertaining_ fa-cts for le~tive purposes is not, in general,_ so formal, or subject to such strwt rules of eVIdence as the procedure of executive 

departments, whether administrative or judicial. Petiti~ns, comp~~. rem~n

strances, statement-s of grievances, are presented to a legiSlature, or, if It consiSt 

of a deliberative body, individual members of that body may represent facts upon their own authority. It may then either proceed at once to legislate upon the faith 

of such suggestions ; or it may take them as raising merely a presumption, and may institute an inquiry of its own. It may call for papers, accounts, correspondence, 

and other document-s; it may likewise, b:y proper means, examine witnes es, and 

thus ascertain, by original testimony, the facts bearing upon the subject under con- sideration. 

So I. S'1Y that the information which is furnished to the Senate by 

the report and testimony of this committee not only comes within the 

rules of evidence upon which legislative bodies must act, but that it was obtained in a proceeding instituted by its own authority, con- .1ucted by its own members, exercising its own power to send for per- sons and papers, and conducted, too, tmder the supervision of the 

Sena,tor from Indiana himself; and I say that it is before us, as evi- dence iu this case, and in all ca es, and for all purposes. The Senator 

says it is before us like any other volume in the document-room, or 

any book in the library. I am willing to accept that expression, 

because every book in the library which ves us a fact of history 

applicable 'to this case, every law-book which discusses the questions 

involved in this case, and every document in any room of this Capitol which furnishes information bearing upon this subject, is legiti- mately and properly before us this morning. The attempt of the Senator to exclude from this case the information obtained by weeks of investigation and the examination of nu- merous witnesses upon this subject, and to seat 1\!r. Pinchback upon a p1·ima facie case, is certainly worthy of his ingenuity. He says, 

"My :first proposition is that Pinchbaok is to be seated upon ap1'inta 

facie case," and he then refers to the case of Mr. GoLDTHWAITE, and 

to the remarks of the Senator from Ohio [ Mr. THURMAN] upon that 

suject, I will not say taking care, because it was undoubtedly acci- dental, but happening to fall upon that particular part of the speech 

of the Senator from Ohio which did not touch the precise question, 

and omitting the part of it which did. The Senator from Ohio has 

been a judge, and he has acquired that habit of methodical and accu- rate statement which belongs to the bench, and with his statement 

upon that occasion of what constitutes a p1'ima facie case I entirely concur. But let us see what he did say. I read from the Congressional Globe of J anuary 9, 1872, page 320 : 

Mr. THURMAN. The Committee on Privileues and Elections, in accordance with 

the universal practice of this bod:y from the fOundation of the Government to this 

day, a practice that has not a single exception, reported that the credentials of this 

gentleman being correctThat is, being in due formand he having been elected by a body competent to elect, he was prima fame entitled to his seat, and to be sworn in. 

The Senator from Ohio stated the proposition accurately. When a gentleman comes to this body with credentials in due form, showing 

that he has been elected by a body authorized to elect a Senator, then 

he has a p1·inw facie case. The case then before the Senate, and upon 

which the Senator from Ohio was speaking, was such a case. There was a question made here as to individuals sitting in the LegisL'tture 

of Alabama, but there was no question that the body itself wa.s the 

Legislature of the State; and the better opinion is that the Senate 

has no authority to inquire into the right of individual members of a State Legislature to sit therein, that being a question to be settlecl by 

the Le~lature, if there be a Le~islature to settle it; but the Senate has 

authonty to inquire whether the body which has pretended to elect a Senator was the Legislature of the State. The Legislature alone can elect a Senator, and, therefore, to make a p1'inw facie case it must 

be shown that the Legislature has made an election. 1\fr. MORTON. What is the proper form t· A. certificate by the governor Y 

Mr. CARPENTER. Certainly. 1\fr. MORTON. That is the proper form. Mr. CARPENTER. That is the proper form of credential; bti.t back 

of that is the question whether there was :.my Legislature in Louisi- ana or not-:1 question to which we have devoted six weeks of investi- gation; a question upon which a committee of your body has brought 

almost eleven hundred pages of testimony to your bar, showing conclu- sively, as I shall establish, that there wa-s not, on the 15th day of Jan- nary, 1873, any government whatever in that State, nor any Legislature. Therefore I lay aside what is called the p1•ima facie case with 

the single remark that it does not exist. We have the credentials in 

proper form, but we know the fact from our own investigation, insti- tuted independently of Mr. Pinchback's application for a seat, that 

there wa-s no Legislature in that State on the 15th of January, 1873. Mr. MORTON. Will my friep.d allow me to call his attention to the 

fact that the case of Robbins vs. Potter, in 1834, from Rhode Island, was the precise case, where it was contended that Mr. Potter was not 

elected by a e~ ature, but that the Legislature itself was a nullity, 

having no autnority in law; and that in that very case the Senate 

solemnly decided after a discussion that a-s his credentials were in 

regular form, signed by the governor of Rhode Island, he must :firs- be seated, and the question as to whether he was elected by the Legist 

lature of Rhode Island be decided afterward. Mr. CARPENTER. Will my friend allow me to remind him that 

the report in that case shows that it was not such a en e as this 

Mr. :MORTON. Prove it by the report. 1\fr. CARPENTER. I shall prove it by the report. I have it here ; 

I have it marked; :mel I only ask my friend to be a little patient, be- cause it is impossible for me to discuss all the points in this ca e at 

the same instant. Mr. MORTON. The Senator said he was pv.ssing from the p1'i11w 

facie case, and that was the reason I made that remark. Mr. CARPENTER. I intended to pass from the a erted prima facie 

case, because there was no p1·i1na facie case here. But, certainly, I 

shall attend to the case of Robbins; I will not forget it; I have it 

noted. The fact was, in GOLDTHWAITE'S case, that there was but one man in that State who claimed to be governor ; there was but one body claimin~ to be the Legislature. As a court is bound to take judi- cial notice, so we are bound to take legislative notice of the compo- nent parts of this Union and their condition; and we may form our judgment, as Lewis says, from petition, and remonstrance , and news- paper reports, or from the representations of Senators who come from 

the locality, or we may institute investigations of our own. In this 

. 
1038 CONGRESSIONAL RECORD. J .ANU.ARY 30, 

case it happens that all these sources of information have been drawn 

upon, and the result is embodied in the report of the committee to 

which I have referred, that on the 15th day of January, 1873, there was no Legislature in the State of Louisiana. Let me come now to theca e of Robbins. Tbis ca-ae arose in Rhode 

Island, while the State was under its colonial charter. As everybody 

knows, the clo e of the Revolution found all the State , except Rhode 

Island, with new constitutions. She ·continued under the charter 

granted by Charles II. While the State was under this charter government a question arose as to the validity of an act of the Legislature continuing a portion of the Legislature in office by an act of the 

Legislature itself. The Legislature, thus continued, elected a gentle- man to the Senate, and he came here and claimed his seat. After the 

next election, the new Legislature declared the former proceedings 

void and elected another Senator, and he came ·here and claimed a seat. In that case the matter was thoroughly examined; and now let us see how much consolation out of that report can be drawn by the 

Senator from Indiana. In the first place, the committee were of opinion that the Legislature, under the charter, hacl power to continue the 

term of those senators, and therefore the first election was entirely 

legal. Now, let us see what the committee say on a point that is 

material to our discussion : 

There was but one governor and but one senate in the State claiming to be a part of the ~neral Assemoly. If there had existed anothet· body of '11Wn, however chosen, 

contending fo1· the offices of the governor and senators in the State, it will not be denied 

that their respective r-ights mt"gltt be the subject of inquiry in deciding a contested elec- tion in the Senate of the United States. But in tho absence of any such conflicting 

claims to these offices, where only one legislative body w~ known in the State, 

whlch exercised all the power an<l performed all the fnnctions of the Legisla.ture, 

:mel whose acts have in every form aud by every department of the government been declared valid, it would seem to be a palpable inva-sion of the sovereignty of 

the State to abrogate its laws, and overthrow its government by denying that n. body capable of exercising the powers of legislation existed in the State after the term for whlch a governor, lieutenant-governor, and senators, chosen at the annual 

election in .April, 1831, had expired. 

That was the Rhode Island case. Mr. MORTON. Does my friend read that as an:mswerto the state- ment I made awhile ago 'f 

Mr. CARPENTER. I do. 

Mr. MORTON. Seriously f 

Mr. CARPENTER. I do, seriously; I might even say, solemnly. 1\fr. MORTON. Now, l\Ir. Presiclent1\Ir. CARPENTER. I believe I have the floor at pre ent. The PRESIDING OFFICER, (1\fr. FERRY, of :Michigan, in the chair.) 

The Senator from ·wisconsin declines to yield. 

1\fr. CARPENTER. I will yield to the Senator at anytime while ! am on the floor, for the legitimate purposes of an interruption. If he 

wishes to ask a que tion or to briefly call my attention to a fact, I 

will yield to him ; but I will not yield for the purpo e of letting him 

reply to every paragraph that I utter while I am proceeding. Now 

the Senator understands whether he is authorized to interrupt me or not. 

Mr. :MORTON. I simply wish to say th...-.,t the Senator, a moment 

ago, contradicted me J?OSitively. That remark in that report is made 

upon the final examination. When :Mr. Potter propo ed to take his 

scq.t, his right was conte ted upon the ground that the Legislature 

that elected him was no legislature at all; but the Senate determined 

that that question must be investigated after he had taken his seat ; 

and it wa in the final inve ·tigation that the remark now read was made, and in discussing the question, too, whether they were bound 

by the decisions of the supreme court of Rhode Island. That is all I 

want to say. 

}\fr. CARPENTER. The Senator, I trust, did not understand me as attempting to raise a question of veracity. 1\fr. MORTON. You raised a question of correctness of statement. Mr. CARPENTER. Which statement is a-a to the effect of the report, 

and that is a matter of opinion on yonr part and a matter of opinion on mine. · :Mr. MORTON. Not much a matter of opinion. Mr. CARPENTER. I do not think it is, either. I think it is abso- lute certainty, if the Senator will press me . to that point. I think it 

entirely clear that he is wrong ; but I only meant to say th at he erred 

in opinion. Now, what r esemblance is ther e between the Rhode Island case and 

this case 'f It does not matter at what point you investigate. The 

Senator says that case is a great authority for him, because the Senate 

_investigated the case after they seated the Senators. If t h e Senator 

from Indiana had moved to seat Mr. Ray when he came here, and this 

investigation bad taken pla-ce afterward, that would have been the 

proper proceeding, but for the fact that ;he knew, without any inves- tigation, that there wa no Legislature to elect. But the Senator did 

not see fit to pursue that course. He did not ask that Mr. Ray should 

be seated on his pri'Tfta facie case; he called for an investigation of the 

facts, and the committee sat six weeks to ascertain t h ose facts. Now, what resemblance is there between this case and theca e of 

Robbins Y None whatever. In that case the report itself asserts that 

if there ha-d been two bodies claiming to be t4e Legislature, it would 

have been within the power of the Senate to investigate which was tho lawful Legislature. The Senator says, you must investigate it 

after you have seated the en a tor on a prima facie ca e. But here you 

have investigated the subject before Pinchback presented his credentials. Does the Senator mea.u to assert that if we proceed to investigate, and ascertain that there is no State government m Louisiana, 

that as often as a question arises, the decision of which depends upon 

that fact, and we know that the status r emains the same a-s when we investigated, we cannot act upon our knowledge of that fact but must investigatea~ain, call the same witnesses, take the same testimony, and 

report it agam to this body Y The Senator can hardly maintain uch a proposition. It makes no difference whether the inve tigation was made before ~fT. Pinch back applied for his seat or is made afterward; 

his claim must be determined upon the facts, and it is immaterial 

when those facts came to our knowledge. A 111'irna facie case is that which appears bef or e an examination of 

the merits; but when there has beeu a full inve tigation and trial, 

and it is ascertained that what appeared, primafacie, to be the case, is 

not the true case, then the prirnafacie case is gone. In Robbins's ca e there had been no investigation, and therefore the Senate properly 

acted upon the pt"ima faaie case. But here a full investigation had 

been made before Pinch back presented his p1-i1na facie case. When- ever the Senate acts it must act upon all the fa-ct before it; and, in 

this instance, we have not only the prima facie ca made by the cre- dentials, but also the full inve tigation showing that Pinchback's 

p1·ima facie ca e is false. This is the difference between this ca-se and 

the Robbins case. 

:1\fr. President, with the e remarks upon the printa facie ca-ae made 

by Mr. Pinchb:wk's credentials, I come to consider the events which 

have transpired in the State of Louisiana. 

In this part of t h e case I shall be'dry, and, I fear, tedious. It will 

consist of a mere narration, which can encourage no one, and must 

depress every lover of his country. But it is my duty ~o lay before 

tho Senate the facts of the case in all their naked deformity ; after 

which I shall wash my hands of all this busines ; and if my repub- lican friends, with full knowledge of the case, see :fit to take it upon 

their shoulders through the next political campaign, I can only ay 

I wish them joy. It is conceded on all hands that on the 1st of November, 1872, Warmoth was governor of the State and Pinchback wa lieutenant-gov- ernor, he having been elected president pro ternpm·e of the senate aud 

becoming lieutenant-governor on the death of Governor Dunn. Tho 

board of canvassers provided for by the State law at thattime- I am speaking now of t he 1st of November--consisted of the governor, War- moth ; the lieutenant-governor, Pinchback ; the secretary of state, 

if anybody could find out who that was; J ohn Lynch, and T. C. 

Anderson. On the 4th of November, 1872, there was a general election 

for electors of President and Vice-President, State officers, half the 

senate, and the whole house of repre entatives. 

Let us here see what were the provi ions of the constitution and 

laws under which this election wa held. Tbe provision of the con- stitution, found on page 2 '6f the report of the committee, and the 

statute, on the third page of the r eport, are as follows : 

The supreme executive power of the State shall be vested ina chief magistrate, who shall be styled the governor of the State of Louisiana. He shall hold his office 

during the term of four years, and, together with the lieutenant-governor elected 

for the same term, be elected~ follows: The qualified electors for representatives 

shall vote for governor and lieutenant-governor at the time and place for votinl? for 

representatives; the returns of every election shall be sealed up and transiD.Itted 

by the proper returning officer to the secretary of state, wl10 shall deliver them to the speaker of the house of representatives on the second day of the session of the 

General Assembly then to be holden. 1'he members of th deneral.Assembly shall meet in the house of representatives to examine and count the votes. The per on having the greatest number of votes for governor shall be declared duly elected; 

but in case of a tie vote between two or more candidate , one of them shall be immediately chosen governor by joint vote of the members of the General Assemblv. The person having the greatest nnmber of votes polled for lieutenant-gonrnor sh:ill 

be lieutenant-gov-ernor; but inca e of a tie vote between two or more candidate , one of them shall be immediately chosen lieutenant-governor by joint vote of the 

members of the General Assembly.-Oonstitution, title 3, executive department, article 48. 

The act of 1870 p rovides in one section : 

SEC. 54. Be it further enacted, d':c., That the governor, the lieutenant-governor, the secretary of state, and John Lynch, and T. C . .Ander on, or a maJonty of them, ball be the returning officers for all elections in the State, a ma,jority of whom 

shall constitute a quornm, and have power to make the returns of all elections. In case of anyvacancy by death, resignation, or otherwise by either of the board, then 

the vacancy shall be filled by the resitlue of the board of returning officers. 

Then on page 5 is section 57, as follows : 

That should any of the returnin.., officers named in this act be a candida to for any office at any election, he shall be 'disqualified to a.ct as returninK officer for t.bat election, and a majority of the remaining returning officers shau summon some respectable citizen to act~ returning officer in place of the one so di qualified. 

Thus it will be seen that the governor, the lieutenant-governor, 

the secretary of state, John Lynch, and T. C. Anderson were the re- turning board. The act which created the Teturning board was clearly unconstitutional'; that is, in conflict with the constitution of 

the State, which provides that the governor sh all appoint al1 officers. Tbe act itself created the office and filled it. It is as if Congre tomorrow should create a new departmsnt of the Government, to be 

called the department of internal commerce, and provide that J ohn 

Doe shall be secretary of that department and A B, C D, E F, aud so on, shall be clerks and assistants in the department. The act 

creating that office and :filling it in the same breath by two private 

citizens wa · as clearly and flagrantly in violation of the constitution as any act can be ; but that was the act under which the election was held. Now, to recapitulate, t h e board consisted of Warmoth, of Pinch- back, of the secretary of state, (there being a tlispute as to wht 
I 

1874. CONGRESSIONAL RECORD. 1039 

was secretary of state,) of J~hn Lyn?h, and of T. C .. .Anderson. It was provided by another sect10n that 1f any one of this board hould 

be a candidate at any election for ::my office whatever, he should 

bt' illelicrible to canvass that election. l\1r. Pinchback and Mr . .And{'l!rson ~ere candidates and were clearly disqualified. So that the 

board was composed of Wn,rmoth, the secretn,ry of state, and John 

Lynch. Here let me call the attention of the Senate to the contest as to 

who was secretary of state. WMmoth, on the 1st of August, 1871, 

by what he was pleased to style n,n "executive order," suspended 

]fr. Dovee, who had been elected secretn,ry of stat~ n,t the same time that \VaJ'moth was elected governor, and appomted one Her- ron in his place. Before Bovee was suspended he had appointed one Wittgenstein assistant secretary of state. A~r Herro~ was appointed by the governor he pretended to remove W1ttgenstem and 

appoint one Fairfax. Of course this executive order of Governor 

Warmoth was just as efficacious for any legal purpose as an execu- tive order issued by the editor of the New Orleans Republican remov- ing Warmoth would have been. It did not remove Bovee; it was utterly void. The governor ha-d no more authority to issue it than a private citizen had, but still he did issue it, and Herron went into 

office and Bovee went out, and Herron removed Wittgenstein and 

appointed Fairfax, and Herron and Fairfax were in the offices, that 

is, they were in the rooms, in possession of the papers, the seal of the 

State, and the documents and records of the office, when thls election 

took place, on the 4th of November, 1872. So that Herron had good 

hope that he was the secretMy of state. designated by the act to serve 

in the boaJ'd of canva ers. The law requires that within ten days after the election the boaJ'd 

shall meet to canvass the r eturns. On the 13th of November the 

board met. It was evident from the first meeting that there was a good time coming, and desiring not to hasten it unnecessarily, they 

adjourned without doing anything until the 14th. On the 14th Warmoth seems to have been convinced that he could not control Herron 

in the canvassing boMd, and that Herron having the casting vote 

between him an<! Lynch would organize that board with men un- friendly to his purposes. The boMd had adjourned to twelve o'clock 

of the 14th; but on the morning of the 14th WaJ'IDoth put forth 

another "executive order," removing Herron and appointing one Wharton to take his pla.ce; and Wharton appeared and claimed his 

sen,t as a member of the board of canvassers. Then the boaJ'd con- sisted of Warmoth and Lynch, undoubted members under the law, 

Herron or Wharton, if anybody could determine which, and two 

vacancies ; and it was the duty of the boaJ'd to fill those vacancies. 

They proceeded to perform that duty. WaJ'IDothand Wharton voted 

for Hatch and Da Ponte; Lynch and Herron voted for Longstreet and 

Hawkins. Now it is manifest that only one of these persons, either Herron or Wharton, was entitled to act, because both of them were not secre- tary of state; but as it was uncertain which wa,s, they both voted; W aJ'-

moth and Wharton voting for Hatch and Da Ponte, and Lynch and 

Herron voting for Longstreet and Hawkins. 

After this there were two boards: one consisting of Warmoth, an undoubted member, Wharton, Hatch, DaPonte, and Lynch, (always 

absen ; ) and the other board consisting of Warmoth, (always absent,) 

Lynch, Longstreet, Hawkins, and Herron and Bovee, serving by turns. 'fhe e, then, were the two boards resulting from the attempt to fill the 

vacancies in the board. 

J f we could ascertain here whether Herron or Wharton was secretary 

of state at the time of this filling of vacancies, we could then determine 

whether Hn,tch and DaPonte, or Long treet and Hawkins, were duly 

elected. It turns out in point of fact that neither Herron nor WhaJ'ton was secretary of state; neither of them had a right to vote at all, as I 

will how you ; and therefore the attempted election resulted as follows: Warmoth, entitled to vote, voting for Hatch and Da Ponte; 

Lynch, entitled to vot~ voting for Longstreet and Hawkins, and 

therefore there wa no election. Let us see if this is the true state of the case. I have already reminded the Senate that Herron, who had been 

appointed by Warmoth after the removal of Bovee, removed Wittgen tein and appointed Fairfax as istant secretary of state. Wittgenstein and Fairfax commenced litigating to determine which of 

them was assistant ecretary of state. That case went to the supreme 

court, and let me call the attention of the Senate to the fa.ct that the case was decided by the supreme court of Louisiana before any con- t est arose as to the election of 1872. 

The Senator from Indiana has dilated much upon our duty to bow 

to the decisions of the supreme court of Louisiana in determining a question of which the Constitution of the United States says we shall 

bo the exclusive judges. And if we are to bow to the decisions of that 

State court, I want to show the Senate that the decisions which were made when the judicial mind was impartial, made before temptation 

hau overwhelmed the judges, made before political necessitie had 

unucrmined their integrity, w re all in favor of the line of argument 

which I am pur3uing. 

In this suit of Joseph Wittgenstein vs. F. J. Herron and J. W. Fairfa,x, to be founu in volume 24 Louisiana .Annual Reports, pages 432, 433, 

the court held as follows: 

ra~! ~U:~~~!=:·~r;y~tt~o~~~~~1:: r~:~t~J~-!!:f tonge~ [!~~~!~.in~~~~~ 

was an _unnecessary and impro:per jo:i.J?.der of parties. Eliminating, ther~fore, from 

the action the extraneous portwn of 1t, we shall proceed to an examination of the 

issue between Wittgenstein and Fairfax in regard to the office of a sistant sec- retn.ry of state. The governor suspended the secretary of state from the exercise 

of his functions a.s a state officer. No vacancy in the office of secretary of state thereby arose. 

The governor suspended Bovee as secretary of state, but no vacancy 

in the office of secretary of state was thereby created. 

The governor is without power to appoint a. secretary of state unless a vacancy occur in the office, and then only ad interim as provided by the constitution. 

Conceding- ( 

.And I want to call my friend's attention particularly to this. This 

is high authority. This is the supreme court of Louisiana while it was a court : 

Conceding that in case of the suspension of a secretary of state from thQ perform- ance of the duties of the office, the governor would have, on general principles 

the right to appoint a person to discharge t.he duties of secretary of st:tte-upo~ which we express no opinion- the person so appointed would be clothed only with 

ministerial duties, such as arise in the usual routine of ojfice business. The secretary of state is vested by law with the power to appoint an assistant secretary of stn.t6. 

'lhis is not a. mere ministerial duty. The person charged with the performance of 

the ministerial duties of the secretary of state during ills suspension from office is 

without power to remove from office, and much less without the power to appoint to office an assistant secretary, for the reason that he himself is not secretary of state. 

That court before it was tampered with, ·that court while it enter- tained no fear of its existence, decided what every other court would 

decide, that a void order produces no legal result ; that as the gov- ernor had no authority to remove Bovee, Bovee had not been removed; as he had no authority to appoint a secretary of state except in case of a va.cancy, and Bovee had not been removed, there was no vacancy, 

and tlie appointment of Herron was a nullity. They say that conced- ing which they do not decide, but even conceding that when the gov- ernor had done such an extraordinary thing as to suspend an officer over whom he had no control, he might appoint another to discharge 

the duties of the office ad interim,, yet such appointee could only dis- chaq~e the mere routine duties of the office, and that he could not 

appomt an assistant secretary of state for the reason that he was not 

secretary of state himself. This decision was made in May, 1872, six 

months before the election. There is another decision in the same volume on page 19, establishing the same principle-the case of Edmondson vs. McNeely. In this case the court say : 

The relator, M. D. Edmondson, proceeding under the intrusion act, complains that 

the defendant has intruded into the office of parish judge of the parish of Sabine, 

which office belongs to the relator by virtue of his election at theN ovemberelection 

of 1870, and to which he wa-s duly commis ioned. and qualified. 

Then they state other facts, and add: 

There is no doubt th...'l.t the relator, M. D. Edmondson, is the lawful incumbent of 

the office in question. He-was duly eleted and qualified, receiving his commission 

from the governor, dated 31st December, 1870. It is not pretended that he has resigned or has been r emoved by add.re s or im- peachment. It appears as a. matter of fact that the commission to the defendant was issued by the governor in error, the governor having been led to suppose that• the plaintiff had left the State permanently and thus abandoned his office. · It is well settled that a constttutional ojfwer cannot be destitutcd of his office except 

in the manner provided in the constitution, and that the appointment to an ojfice not vacant gives no title thereto. 

There, Mr. President, are two cleaJ' adjudications of the supreme 

court of Louisiana, when everything was tranquil, when no election was pending, when no canvass was proceeding, when no rival candidates were struggling for the State offices, settling principles which 

show cleMly and conclusively that Herron never was secretary of 

state, and that he therefore had .no right to a-ot in the canvasing 

board, that .not being one of the routine duties of the office; and of course ho had no right to vote in' the boaJ'd to elect the vacant mem- bers of that board. He could no more vote to fill ihose vacancies t.han 

he could appoint an assistant secretary of state, and for the same rea- son, because, as the court say, he was not secretary of state him.selj. Then it follows, Mr. President, by necessary logical conclusion, thai 

the vacancies existing in the canva sing board on the 14th day of 

November were never filled. There were on the 14th of November 

but two legal members of the board; one was Warmoth, the gov- ernor, the otherwas Lynch. Warmoth voted for Hatch and DaPonte, 

and Lynch voted for Longstreet and Hawkins, and of course no olection was effected. Warmoth and Lynch never met officially ad:ter- ward. Warmoth, at the election to fill the vacancie , treated WhM- ton as secretary of state, counted his vote with his own, and declared 

that Hatch and Da :Ponte were ewcted, and the four withdrew, inviting 1\fr. Lynch, but 1\fr. Lynch went not. Mr. Lynch, considering 

Herron secretary of state, thought Herron's vote _should be .counted 

with his own, and they withdrew with Lengstreet and Hawkins, and con tituted the Lynch board, recognizing Warmoth as a member, but he refusing to act with them. But in the light of these decisions of the supreme court it is as clear as any proposition can be made by adjudication that Herron had no right to vote in that board; that the only men who had aright to vote were Warmoth and Lynch,_ and that they voted in opposite ways, and no lection whatever resulted; and from that. _day those two boards never met; from that day Warmoth and Lynch never met ; from tbr.t 

day there never was but one man who was a legal officer. unuer t.he 

election law who pretended to sit in any board that pretended to be a canva ing board. 

f.r. WEST. Who was that 
1040 CONGRESSIONAL RECORD. J .ANU.ARY 30, 

Mr. CARPENTER. That legal officer was Warmoth in one board, 

and Lynch in the other. 

Mr. WEST. You said" one." 

Mr. CARPENTER. I say but one officer in ea-ch board. Nobody 

will claim that Warmoth sitting in one building, and Lynch sitting 

in another, made a legal board. They must meet as a board; the 

legal members of the board must meet in order to ~ave the power 

which the act conferred on the board. Such a meeting never took 

place; and if the decisions made by this. court in May, 1872, are to be 

consid red as settling the law, then Herron never was secretary of 

state, and never had a right to vote for any man to fill those vacan- cies, and his vote was therefore void, and the vacancies never were filled. The fact is that Bovee was secretary of state all the time; but if 

the fact had been known it would not have obviated the difficulty, 

because Bovee was himself a candidate, and therefore ineligible to serve. There would still have been but two legal members of the 

board, and three vacancies. If I am wrong in this the supreme court decisions made before this con- troversy arose are to be ignored utterly:, an?- all sound reaso~g is to 

be disregarded on the subject, for I mamta,m that tho e deCisiOns are the undoubted law and what any court would hold. And in. the light 

of these decisions it is clear that the canvass of votes by the Lynch 

board was absolutely void. · But it is worth while to see how this Lynch board proceeded. The 

Senator from Indiana, when pressed upon -this matter, will have to 

rely upon the proceedings of this board. He has done so in the former 

discu sions of this ca e, and he will now.- Conceding now the Lynch 

board to have been legal, although we know it was not, let us see what was done by it. The returns as they came up from the election 

under the law were sent to Governor Warmoth, and the law made it 

hi duty to lay them before t he canvassing board; and immediately 

afterward, this difficulty having arisen, the Lynch board,_ s<_> call~d, 

obtaiued an injunction against Governor Warmoth, restrammg him 

from canvas ing those returns except in their board; and the War- moth board obeyed this injunction and made no canvaM. 

This much is to be said in favor of the Warmoth board, that being 

enjoined, it stopped; but the Lynch board, although equally enjoined, 

proceeded to make a canvass, in open contempt of the injunction ; and 

yet it is admitted it never had a return before it t o canvass. .Mr . .MORTON. The Senator omits one fact there. Mr. CARPENTER. What is it Y 

Mr. MORTON. Governor Warmoth opened the returns in his prjvate office. 1\fr. CARPENTER. Yes; the testimony shows that Governor Warmoth opened the e returns in his own office, but they were not laid 

before his board with a view to be cllJ.lva sed, and they were never laid before the Lynch board at all. No'Y let me call attention to the contest which sprang up between 

these two board . I ask the Clerk to read from page 8 of the report 

which I send to him. The Chief Clerk read as follows: 

The e boards, for convenience of designation, will hereafter be called the Warmoth board and the Lynch board. Each of these boards appealecl to the court. The Lynch board, about November 

18, 1872, commenced suit agains~ ~he Warmoth board in t~e eighth district court of ow Orleans, Dibblo, J., presiding. About the same time the Warmoth board 

commenced suit against the Lynch board, in the same court, and before the same judge. ~ibble_granted :ti! injunction~ both .c~ses, njo~g b<?t~ boaz:ds .. In con- n ecB.on w1th this extraordinary proceeding of IU.JUnction agarnstiDJunction,Itshould be borne in mind that Dibble was a judge holding over until his successor should 

be commissioned, and wa.s therefore directly interested in re trainin.rr any canva s of votes which must determine that his opponent (Elmore) wa dufy elected and 

entitled to his (Dibble's) seat; and that he would continue in office as long as the 

injunctions granted by him should prevent a legal determination that his opponent 

(Elmore) had been elected in his place. That Elmore had, in fact, been elected over Dill ble two to one, is admitted by all parties in this controversy. Abo~t the 19th of November Dibble decided the suit commenced by the Lynch 

board in their favor, and enjoined the Warmoth board, and on the same day dis- missed the suit in favor of the Warmoth board against the Lynch board.- Thereupon Governor Warmoth took from his safe a bill which had been pa.ssed 

by the Legislature in the previous spring, but never approved by him so as to be- come a. law, and on the 20th of November, 1872, gave it his approval. This act, approved November 20, 1872, among other things, provides as follows : "SEc. 2. Bait further enacted, &c., That five persons, to be elected by the senate, 

from all political parties, shall be the returning officers for all elections in the State, a ma1jority of whom shall constitute a quorum, and have ;power to make the returns of ail elections. In case of any vacancy by death, re 1gnation, or otherwise, by either of the board, then the vacancy shall be filled by the residue of the board of r eturning officers. '.rhe returning officers shall, after each election, before entering on their duties, take and subscribe to the following oath, before a judge of the 

supreme or any district court: "I, A B, do solemnly swear (or affirm) that I will faithfully :tnd diligently perform the duties of a returning officer as prescribed by law ; that I will carefully and 

honestly canvass and compile the statements of the votes, and make a true and correct return of the election: So help me God. 

"Within ten days after the closing of the election said returning officers shall meet in New Orleans to canva s and compile the statement of votes made by the 

commissioners of election, and make returns of the election to the secretary of state. They shall continue in se sion until such returns have been compiled. 1

.rhe 

presiding officer shall, at such meeting, open, in the pre ence of the aid returning officers, the statements of the commissioners of election, and the said returning 

f~3~~~~~; ~~ c~~; ~~~~~:nr~t:v~!;~~;{ifif~~ r~~~£ ~~:;~~~; of state , and of ono copy they shall make public proclamation, by printing in the efticialjournal and such other newspapers a.s they may deem proper declaring the n ames of all persons and officers voted for, the number of votes for each person, antl tb~nam s of the persons who have been duly and lawfully elected. The return of the elec.tion thus made and promulgated shall be prima facie eviclence in all 

courts of justice and before all civil officers, until set aside after contest according to law, of the ri~ht of any person named therein to hold and exercis the oftice to which he shall oy suoh return be declared elected. The governor shall, within 

thirty days thereafter, issue commissions to all officers thus declared elected who are required by law to be commissioned." 

And further, as follows : "SEC. 71. B e it further enacted, d!c., That this act shall take effect from and after 

its passage, and that all others on the subject of election laws be, and the same are heroby, repealed." 

Governor Warmoth claimed that the effect of this act was to abolish all pre· viously existing canvassing or returning boards; and that, inasmuch as the act took effect during the vacation of the Legislature, he was authorized to appoint tbe 

board under that provision of the constitution before 9.uoted, which authorizes the 

governor to fill vacancies occurring during such vacation. 

On the same day upon which the governor approved the lastr-named act he issued a. proclamation, calli.D.g a session of the LegisL'tture, to convene on the 9th day of 

December, 1872. It is admitted on all hands that the members of the Legislature elected November 4, 1872, if any were elected, were authorized to convene uncler 

this proclamation. 

On the 21st of November motion was made before Jud~e Dibble for a new trial 

in the suit of the Lynch board against the Warmoth boara, in which the judge had 

decided in favor of the Lynch board, enjoining theW armoth board, and in the suit 

in fuvor of the Warmoth board against the Lynch board which that jndrre had 

di missed; and these motions were set down for hearing before Judge Di1Jble on the 25th of November. Before this day arrived Governor Wazmoth, pr t-ending to be convinced that Elmore had been elected in place of Dibble, commissioned -:El- more who, supported by the heriff and a posse comitatus of roughs and thug. , took 

his place on the bench, and excluded Dibble. . It should be stated, however, in this 

connection, that although no legal c:mvass had been made a ce11taining the fact that 

Elmore was elected, nevertheless it is admitted by all parties that he was, in fact, elected by about 9,000 majority. 

On the 3d of December, Elmore, who had been commissioned as afore aid, and was seated on the bench, substantially by force, granted the motion for now trial in 

both cases, upon the ground that the a{}t approved November 20 had abolished all former boards; and he dissolved the injunction granted against theW armoth board, 

and dismissed both suits. 

Governor Warmoth, having thus, by the judgment of a judge by him prematurely commissioned, rid himself of the embaiTassment arisincr rrom the two boards of canvassers pretending to act, on the evening of the 3d o'f December proceed eel to fill the board provided for by the act of November 20, by appointing De F eriet, 

Wiltz, Isabelle, Austin, and Taylor, in pretended pursuance of the authority cou- foiTed upon him by article 61 of the constitution, to fill va{Jancies happening in the 

vac..'ttion of the Legislature. · 

1\fr. CARPENTER. I have requested the reading of this extract 

from the report to give a brief hi tory of the contest which took place 

between these two boards. I now want to show how the Lynch board 

proceeded; and I will ask the Clerk to read, from page 51 of tbe evi- dence, section 29 of the election law of 1870, under which this elec- tion was held. 

The Chief Clerk read as follows: 

SEC. 29. B e it further enacted, &c., That in any parish, precinct, ward, city, or town, 

in whi h during the time of re~ tration or revision of regi tmtion, or on any day of election, there shall be any not, tumult, acts of violence, intimidation armed clisturl1ance, bribery, or corrupt influences, at any place within saicl parish, or at or near any poll or voting place or places of re~tration or revision of re¢. tmtion, which 

riot, tumult, ad:.s of violence, intimidation, armed.disturbance, bribery, or corrupt 

influences shall prevent, or tend to prevent, a frur, free, pea{Jeablo, and full vote of all the qualified electors of said parish, precinct, ward, city, or town, it shall be 

the duty of the commi sioners of election, if such riot, tuniult, a{JtS of violence, intimidation, armed disturbance bribery, or COITupt influences occur on the day of election, or of the supervisor of registration, or any assistant supervisor of r eg- istration of the parish, if they occur during the time of registration or revision 

of registration, to make in duplicate, and under oath, a clear and full statement of all the facts rela~ thereto, and of the effect produced by such riot, tumult, acts of violence, intimidation, armed disturbance, bribery, or corrupt influences, 

in preventing a fair, free, peaceable, and full registration or election, and of the 

number of qualified electors deterred by such riot, tumult, acts of violence, 

intimidation, armed disturbance, bribery, or corrupt influences, from registerin"" or voting, which statement shall also be corroborated under oath by three respect..~le citizens, qualified electors of the parish. 

l't!r. CARPENTER. Now turn to pages 57 auc15 and read section 

55 of the same act, for the purpose of showing what wa thejurisillction 

of a canvassing board under that act. The Chief Clerk read as follows : 

SEC. 55. Be it further enacted, &c., That in such canvass and compilation there- turning officers shall observe the following order: 'l'hoy shall compile first the statements from all polls or voting place at which there shall have been a fuir, free, 

and peaceable registration and election. Whenever from any poll or votina place there shall be r eceived the statement of any supervisor of registration, assistant 

supervisor of registration, or commissioner of election, in form as required uy sec- _tion 29 of this act, on affidavit of three or more citizens, of any riot, tumult, acts of 

violence, intimidation, arn1ed disturbance, bribery, or corrupt influences, which 

prevented or tended to prevent a fair, free, and peaceable and full vote of all quali- fied electors entitled to vote at such poll or voting place, such returning oftioora 

shall not canvass, count, or compile the statement of votes from such poll or voting place until the statements from all other polls or voting places shall l1ave been canvassed and compiled. The returning ofticers shall then proce d to investigate the statements of riot, tuniult, acts of violenoe, intimidation, armed disturbance, 

bribery, or corrupt influences at any such poll or votinl? place, and if from tho evi- dence of such tatements they shaJl be convinced tha~ such riot, tumult, acts of violence, intimidation, armed disturbance, bribery, or corrupt influences dirl not materially interfere with the purity and freeclom of the election at suc.h poll or voting place, or did not pre>ent a ufficient number of q,ualified voters thereat from re!rlstering or votinu to materially change the result of tho election, then, aml not oti;.erwise, said retu'rning officers shall canva s and compile the vote of such pdll or voting place with tho e previously canvassed and compiled; but if saicl rehu·ning officers shall not be fully satisfied thereof, it shall be their duty to examine further 

testimony in regard thereto, and to this end they shall havo power t{) end for per- sons and papers. If after such examination the aid returuinrr officers shall be 

convinced that said riot, tumult, acts of violence, intimiclation, armed di turbance, 

bribery, or corrupt influences did materially interfere with the purity and freotlom 

of the election at such poll or voting place, or did prevent a sufficient number of 

~:u1r~fit1~ ~\~~~~~ tf:~!a~~o~de~~~ ~ffi~:r~~~ron':i\a~~~~ ~~a~ ~~~: the statement of the votes of such poll or voting place, but shall exclude it from 

their returns. 

1\!r. CARPENTER. Thus it will be seen, :Mr. Pre iclent, that the 

duty of the canvassers is entirely ministerial. Their entire duty is to 
• 

1874 CONGRESSIONAL- RECORD. 1041 

take the statements and returns sent up from the polls and compile 

them, aggregate them, and state the result, except there shall come from some polls a certificate from the commissioner that there was riot or fraud or briberyin such degree as materially to affect the- result of 

the election. Then, their duty is to canva~ all the unquestioned polls 

first. Then, take up the e disputed ca~es, and their jurisdiction to inquire into the subject is based entirely upon the statement from the 

commissioner that there has been riot, fraud, or bribery, which h::ur. 

materially affected the result. They shall take, in the firstplace,-tbe 

statement, and if they are satisfied from that, they may decide without further evidence. If not, they may send for persons and papers and determine whether there has been such riot, fraud, bribery, &c., 

at the polls. If they find that there bas been, and are still of the 

opinion that it did not materially affect the result of the election, 

they are to canva~ the return just as the return is; but if on the inyestigation they are satisfied that the riot, bribery, fi·aud, &c., did 

materially affect the result, then they aro to r eject that poll entirely; so that the only jurisdiction they have is based upon this report from 

the poll of fraud, riot, &c., and the only thing they can do after they 

have made the investigat,ion is either to count tho 1·eturn or reject it 

in toto. 

I may say here in passing that in point of fact not a single statement showing any riot, or fraud, or bribery accompanied a single 

.return. Therefore, if the proper canva sing board had bad the proper 

legal returns before them, they would have had no jurisdiction. what- ever to call a witness or inquire into the fact of the election at a single 

poll. 

I wish in this coi:mection to refer to the ca.se of Bashford t•s. Barstow, 

( 4 Wisconsin, 79B ; ) ::tncl I will a.sk the Clerk to read the passages I have 

marked. I may say that the statute of Wisconsjn, so far as this question 

is concerned, is almost identical with this Louisiana election law of 1870. 

It requires the canvassers to make their statements from the returns 

made to them, and the acts are for all material purposes identical. In 

the case to which I refer the canvassers did receive what were called 

supplemental returns~ th::tt is, they received statements made by the 

officers at a day later than the regular return, and then they received some affidavits showing th..'bt irregularities took place, and all that 

without any authority from the law. The extract which I ask the 

Clerk to read will show how that matter was disposed of when the 

election came in contest before the supreme cotut of Wisconsin. 

The Chief Clerk read as follows: 

"SEC. 73. The board, when thus formed, shall, upon the certified statements of 

elections made by the boards of county canvas ers, proceed to examine and make a statement of tlie whole number of votes ¢v('n at any such election for the offices of 

governor and lieutenant-governor, secTetary of state, treasurer, attorney-general, and State superintendent, or either of them ; and another statement of the votes given for Representative in Con!ITess in each congressional district; each of which statements shall show the name of the persons to whom such votes shall ba"\e been given for either of tho said olices, and the whole number of votes given to each, 

distingu:isbinrr the several districts and counties in which they were given. ••SEc. 74. 'l'ihey shall certify such statements to ue correct, and subscribe their names therew, and they shall thereupon det-ermine what persous h.·w o been by the 

greatest number of votes duly elected to such offices or either of them, and shall 

make and subscribe on each statement a certificate of such determination, and deliver the same to the secretary of state. 

* * * "SEc. 95. Whenever it shall sati factorily appear that any person has received a. plurality of the legal votes at any election, for any office, the canvassers shall give to such person a certificate of election, notwithstanding the provisions of law may not have been fully complied with in noticing or conducting the election, or can. vassing or returning the votes, so that the real will of the plurality may not be 

defeared by any informality." 

It will be observed that according to the sev-enty-third ·and seventy-fourth sec- tions above quoted the boar(l are, upon tho certified statements of elections made 

by the boards of county canvassers, to make a statement of the whole number of votes given for State officers, which shall show the names of the persous to whom 

such votes shall have been given, &c., and that thereupon they shall determine 

what persons have been, by the greatest number of votes, duly elected. 

It is clear from these sections of the statute that the Stat<> canvM ers are to maks 

their statement and determination from the certified statements of the county can- vassers alone. .All other testimony is excluded from their consideration. The stat- ute is too positive and explicit upon this subject toadmitof any doubt. No lan~$e 

could have been used in the statute which would ha.ve expressed more clearfy tne intention of the Legislature to confine the State canvassers to the statements of the 

county canvassers than that contained in these sections. 

But it was contended by the counsel for the respondent, in an argument submitted to the court on a former occa-sion, that section 95, above quoted, gave almost un- limited disCI·etion to the State canvassers, and enabled them to receive other testimony as to the number of votes given in the severnl counties for a State office, and to determine from such testimony that a person had received a plurality of 

the votes, although such a result might not be established by the statements of 

the county canvassers. We cannot as8lolnt to this construction of the provision of 

the statute in question. This section provides that whenever it shall satisfactorily 

appear that any person ha.s r eceived a plurality of legal votes, &c. How is this 

fact satisfactorily to appoar7 Ma.niiestly by the statements made by the county canvassers. There is no intimation in this section that any other testimony is to be r esorted to by the State canvassers for the purpose of determining the question submitted to themtb:m that which thestatuteprescribes, namely, the statements of 

the county canvassers. To allow the construction of the statute contended for to prevail would be to dispense with :the necessity of a statement of votes by the 

county canva sers in all cases, and to permit the Sbtecanvassers to substitute any proof which they might choose to hear. · This section of the statute fortherprovicles that tho canva-ssen! shall give to the 

person who bas received a. plurality of legal votes a certificate of election, notwithstanding the provisions of law may not have been fully complied with in noticing 

and conducting the election, or canvassing or returning the votes, &c. 

We think that this provision does not aQtbori.ze the canvassers to hear other tes- timony than such as the statute prescribes. It gives the canvassers power to decide 

that a person who bas received a. plurality of the votes shall receive a certificate of 

election, although the statements which snow this fact may not be in all respects in strict conformity with tho statute. But it by no means gives the canvassers power to consider statements of votes made by other persons than those who by law are 

6G 

authorized to make them, nor by those persons, unless the statement themselves arc authorized by the statute. It appears to us that this must be the correct exposition of this sect-ion of the statute! for the reason that unauthorized statements of votes made b;y inspectors of town e ectious and by county canvassers, upon general principles of law, cannot be evidence for any purpose. It is only when these offi- cers are authorized to make these statements that any effect can be given to them.- 4 Wisconsin Reports, pages 398-SOO. 

Mr. CARPENTER. :Mr. President, I have referred to this decision 

because, as I remarked before, the statnt,es in the 1two cases are for 

all material purposes identical. In Wisconsin there is a little more ma-chinery about it, but the State canvassing board have to cam"ass 

from the statements sent to them by the county boards; in Louisiana 

the State canvassing board have to canvass startements sent up from 

the polls; but the language of both laws is the sa.me in substance in 

defining the duty of the State canvassing board. They are to can- vass from the statements sent to them, and not otherwiee; and in that case the court held, that under no circumstances could the canvMsing 

board go outside of those statements, or take any other testimons, or take any supplementary returns, from the returning officers. 

It has been claimed for this board that inasmuch as they were the 

legal board, but did not have the legal returns, they must canvass something; and if they had not the legal returns to canvass, they must canvass in some other way; and if they had not the returns before 

them, they might take parol proof. I doubt very much whether, 

under any circumstances, that board of canvassers would• be authm·-

ized to take Becondary evidence of the contents of the returns. I do 

not assert that they could not; but I doubt it. A court of O'eneral 

jurisdiction, when an instrument or paper which would be e~denc<! has been lost or-destroyed or is withheld, may, after proper foundation laid, receive parol proof to establish the contents of the writing; 

but I doubt whether thiS board would have any such authority. I am 

of opinion th::tt if these returns had all been collected in the statehouse and destroyed by fire, under that law the canvassers could have 

done nothing. 

But passing that, concede that they might h::tve taken parol proof; 

how fa.r could they go f Manifestly no further than to ascertain the 

contents of the returns. If, for inst::tnce, the returns had been destroyed by fire, or, as the case was, were withheld by Warmoth, what 

parol proof could they take 7 If they could do anything, they could 

call witnesses to prove the contents of the returns, a.nd having established by parol what the returns were, then they could canvass the r eturns by parol proof established. It is evident that such a. power 

would be very dangerous. To provide that a canvassing board, if 

the returns were destroyed or lost, might go back to the fact of the 

election, and establish its results by parol proof, would be offering an inducement to destroy the returns in all cases of closely contested 

elections. So thu,t all that could have been clone in any event by 

thi board. was to tu,ke parol proof. of the contents of those returns, 

and. so having u,scertained their contents, count them and make return 

accordingly. 

But what did this board do! They resolved themselves into a, general committee of investigation. They had no authority as a can- va&~ing board to inquire as to the vote at any of the polling pl~ces, 

because there was no accompan~g statement from the commissioner 

th::tt there had been fraud or not which had disturbed the election. 

They had no juri~diction of that kind; they had no returns before 

them to canvass. What did they do f They resolved that they 

would go ::tway from the returns ba-ck to the fact, and ascertain how 

thls election resulted. They went on, and, as this testimony showsanti after a brief statement of it I shall have the testimony read, so that I may not misstate .it at all-they went on in some cases and 

obtained from the United States officers the duplicate statements 

which they kept under the act of Congress. The State canvassers had no more authority to take them than· they had to take an affidavit signed by a private person. They took those where they could . Where they could not get them, they took newspaper reports of 

what the result was at different polls. Where they could not get 

tho e, they resorted to forged affidavits; and one pleasant little gentle- man swears, with a smiling face, that he himself forged twelve hundred 

affidavits in one day and delivered them to Mr. Bovee, sitting in the 

board, and Bovee said he was "a hell of a fellow," and asked if he 

could not get more of tho same kind; and he said he could get three or four hundred more of the same kind by nine o'clock the next 

morning, if necessary. [Laughter.] Then, not satisfied with the 

duplicate retUrns, not satisfied with the newspaper accounts, not 

satisfied with forged affid::tvits, and after all these valuable means of information failed, the board themselves swear that they made an estimate based upon their knowledge of the political complexion 

of the country as to what the vote ought to have been if it had been 

fair, and counted it accordingly. · Mr. EDl\mNDS. And so estimated itT 

Mr. CA.RPENTER. And so estimated it in one parish, giving Mr. Kellog~ so many votes, and so on. Now, to illustrate, take the p::trish 

?f B~ss1?r· There was no statement of riot to give any jurisdiction to 

mq mre mto the fact. If any such statement had existed, all that the 

board could do was either to count or reject the return. They were first to ascertain whether there was any riot, and then to inquire 

whether it materially affected the result. If it did not amount to 

much, then they were to count the returns just as they did all the 

others. If th~y thought it did materially affect the re~Sult, then they were to reject 1t altogether, and canvass the rest. They mnst eitbe~ 

/ 
,.. 

1042 CONGRESSIONAL RECORD. JANUARY 30, 

count it as it came or reject it entirely. They were to ascertain, on the question of fact, whether the result had been materially affected by 

the riot. If it had been, then they were to reject it altogether and 

count nothing from that poll; if it had not materially affected the 

result, although there had been a riot or had been bribery, they were to count it. In other words, it was a general equitable jurisdiction, to 

do, as they say up in New England, about what is right. 

Mr. EDMUNDS. They could not take a part and reject a part f 

Mr. CARPENTER. They could not take a part and reject a part. 

It was 'all to be counted, or nothing to be counted. In the first place, 

they had no jurisdiction to .inquire; ·and, in the second place, if they 

had jurisdiction, they must either ·count or reject the return; but in 

this parish of Bossier theydidneitherthe one nor the other. Thereturns showed that ltlr .. McEnery had 953 votes and Kellogg 555. If 

they had found the riot, &c., then they would have excluded that poll, 

and neither McEnery nor Kellogg would have had a vote from it ; 

but, nevertheless, by their ciphering they gave Kellogg, 1,159 votes; 

they gave Antoine.} the candidat-e for lieutenant-governor, 1,159 votes; 

they gave Deslon<le 1,159 votes; they gave Clinton 1,159 votes; they 

gave Field 1,159 votes; they gave Brown 1,159 votes. They gave 

McEnery nothing, Penn nothing, Armstead nothing, Graham nothing, 

Oaden nothing, Lusher nothing. lli. E~ltiUNDS. Do you say that is a fact found by the committee 

in the form of a report, or appearing in the evidence there 7 

Mr. CARPENTER. Certainly. The returns themselves show that 

McEnery had 953 votes in that parish. He did not get a vote in this return. The return show that Kellogg had 555 votes; he gets 1,159. 

How much more satisfactory than an election that is l 

Take the parish of Natchitoches. The returns show that McEnery 

hau 1,250 votes; Penn, 1,252; Armstead, 1,243; O~en, 1,252; Graham, 

1,252; Lusher, 1,251 ; Kellogg, 550; .Antoine, 548; veslonde, 549; Field, 

549; Clinton, 548; Brown, 549. This board gave Kellogg 1,206 instead 

of 550. They gave .Antoine 1,206; Deslonde, 1,206; Clinton, 1,206; 

Field, 1,206; Brown, 1,206; McEnery, nothing ; Penn, nothing; Armstead, nothing; Ogden, :r;wthing; Graham, nothing; Lusher, nothing. 

Mr. EDMUNDS. Did they profess to be acting under the statute 

which you·have just read' . Mr. CARPENTER. Certainly; but made slight deviations where 

the republican ti(,6ket required the deviations, as they testify themstJlves. In reading over these returns, finding that every republican 

candidate got precisely the same vote, and that every democratic can- dirlat,e got precisely the same, which is nothing at all, I am forcibly 

reminded of an anecdote I heard about the proceedings in a court out 

in Indianar. A powerful old Hoosier was called up and indicted for 

stealing hogs, and to avoid the danger of variance the pleader had 

charged that on a certain day, feloniously, &c., &c., the defendant 

took and carried ~way two hogs, two pigs, two boars, two sows, two 

barrows, and two of every kind of hog that he had ever heard of. 

\Vhen the indictment was read through to the Hoosier, he looked up 

to the coru·t and said, "Why, your honor, there never was such an evenly divided gang of hogs on earth; the indictment must be void." 

Laughter.] 

We all know the contingencies that ordinarily attend an election. 

Take the case of this man Armstead, who was a colored man, who was a preacher, who was a popular man among his own race, who had 

at all events a great many friends all around; and \V hen you see that 

he did not get even a vote, and that the other side were raised from 

550 up to 1,206, then ask anybody to believe that there was anything 

done honestly by that board. 

In the two parishes to which I have just referred McEnery had 

2,203 and Kellogg 1,105 votes; that is to say, in the two parishes 

McEnery's majority, as shown by the returns, is 1,098, and they gave 

Kellogg in those two parishes 2,365, and McEnery not n vote; that 

is to say, in those two parishes they changed the 1·esult 3,463 votes I 

Now, Mr. President, for the purpose of showing that I · have not 

been 1·ailing at these men, I propose to have their own testimony 

read. Bovee came back into this canvassing board after the proceedings had gone on for a time, and took his seat as secmtary of state, 

after the supreme court decided that he was secretary of state. He wa ineligible to a seat in that board because he was a candidate at 

tho election; but Bovee wa~ not going to be stoppell by a little difficulty of that lqnd. Mere ineligibility to act in a board where neither 

of them had the slighte t right to act at all, where they had nothing to act upon, where they were under injunction restraining them 

from acting at all-a little question of tho ineligibility of a man certainly was not entitled to much consideration, and Bovee acted. 

Now let us read his testimony, and the testimony of some of the other 

members of this board, for the purpose of allowing what they did. I 

will ask the Clerk to read the passages I have marked on pages 484 

and 485. 

The Chlef Clerk read as follows: 

A. &<tint Helena is a very close parish. In 1870 it ~ave 30 democratic majority. It 

is considered a ver.v close parish. Wo made our returns upon affidavits. 

Q. Tbn.t is, the Fc<loral supervisors and their returns ~ 

A. Yes, sir. 

By Ur. W .ARMOTU: ' 

Q. You say it is a \7 ory clo e parish¥ A. V cry close, indeed. · Q. How ma.ny eandidn.tes ran for the Legislature there 9 .A. I do not know. It is a. very close parish. 

By the CHAIRMA.i.'i: 

Q. You said you had the affidavits of the Federal supervisor upon what 7 Didfou 

have these affidavits of the Federal supervisors of the national Government¥ · do not like to use that word "Fecleral" too much. 

A. Affidavits of the supervisors of election. 

Q. What did they show 1 

A. They showed a. very doubtful case. I think just as likely one was elected as another. 

Mr. CARPENTER. I call the attention of the Senate to that re- mark of Bovee, that he thinks one was just as likely elected as the 

other. 

The Chief Clerk continued the reading, as follows: 

Q. Did they show fraud 7 A. Not particularly. 

By Mr. CARPENTER: 

Q. What did you decide about it1 A. To give that to the republicans. 

By the CIIAIRMA.N: 

Q. You gave them the benefit of the doubt¥ ..A.. We were determined to have a le~ture. 

By Mr. McMILLEN: 

Q. In these very doubtful districts, the evidences offraud wore not so patenU A. No, sir; they were not in these particular instances. 

By Mr. CA.B.PJL'fi'ER: 

or '*-0p1o you mean it was very doubtful whether there had been any frauds there 

extnr have no recollection about that. There were some reports, but to no gro.'l.t 

Q. Some unpleasant rumors 7 ..A.. Yes, sir. 

Q. And it being cloilo, you put the republican in 1 A. Yes, sir. 

Mr. CARPENTER. In that very parish in which Bovee swears that one was just a.s likely elected as the other, the returns show that Davis 

the republican candidate, had 276 votes, and Gorman, the democrat; 

708. This canvassin~ board reversed the thing and gave Davis 543 

and Gorman 439, givmg Davis, the republican, a majority of 4; and 

yet Bovee says that one was just as likely to be elected as the other l 

Now I call attention to the testimony of Mr. Lynch, who, I believe, 

stands so fair in all these proceedings in New Orleans that I am tol(l 

he is affectionately called" Honest John Lynch;" and if that be a fact 

after we have heard his te timony in regard to this canvass, wo shall 

be pretty well enabled to judge of the general standard of bonesty in 

official proceedings in New Orleans. I ask the Clerk to read from 

pages 155 and 156. 

The Chief Clerk read as follows: 

~wer. * . * * I would !pre. to make a statement, with the p r-

~S:~~~:~f~~~~ of the general prmCiple that controlled me in my action 

Q. Go on and smte it. A. We ha.d not the technical evidenoo before us. We were what I considered in 

the midst of a revolution, and in order to get at the redult of the election as near as we could, as an officer a{lting, I availed myself of every kind of information within my reach, not only the affidavits, but my former knowledge of the political divisions of the inhabitants of the State as corroborative of tho evidence placed before us. I do not pret-end to say that the results we arrived at in all cases were technically correct, but I believe we were substantially correct as to the result, and that 

it was the best we could do under the circumstances. It was tho best under the 

circumstances we could do in our efforts to arrive at the truth. 

Q. How many affidavits altogether were counted from different :parishes as votes 7 A. I oould not enumerate the whole number. I havo not them m my memory. I 

remember particular parishes. In Natchitoohes there were 1,206. 

Mr. CARPENTER. Let me call attention to one fact at that point. • Under the law, na I have already shown, they could only count the 

rettll'n or reject the return entirely. Instead of that, they set thereturn aside, and then proceeded to count affidavits, of what T Of the 

number of votes cast T 0, no ; but the affidavits of men who swear that they would have voted the republican ticket, but were deprived 

of the right to vote. So that upon that theory the only way a man could be sure of his vote in that parish, wa.s to keep it in his pocket. 

If he put it in the box, somebody might steal it, and he woulu haye no remedy; but if he kept it in his pocket, after tho election he 

could file an affidavit, and then they would count the affidavit a though the vote had been cast. All the o affidavits that heis speaking about are affidavits of men who swear that they did not vote, 

and yet each affidn.vit is counted as a vote in Mr. Kellogg's majorit-y. 

The Chief Clerk re-sumed tho roa.ding, as follows: 

Q. In this parish, in which you say the reJ!ular vote was reject-ed and you counted 

only those that made aflidn.vit.'l that they had not voted, or had been denied the 

right to voto, how many were thoro 7 A. That WM Bossier, 1,159. 

Q. Was that the whole number of vote11 returned by you from that parish¥ A. Yes, sir. · Q. 'Vere they oJl for ono ticket¥ .A. Yes, sir. 

Q. Were there any other parishes in which the regular voto wo.s thrown outf 

A. Yes, sir; Natchitoohe . Q. Was tho whole of tho regular vote thrown out thero7 

A. Yo, sir. 

Q . .And you a.ated upon affidavits 1 A. Yes, sir. 

Q. Howmany? A. One thousand two hWldrocl ancl six. Q. For what ticKets were those affidn.vits7 

A • .All republican. . Q. Then is your statement distinct that thero wero no votes coWl ted in that par· ish except upon affidavits 1 A. None by 118 • 
1874. CONGRESSIONAL RECORD. 1043 

Mr. CARPENTER. That is, ovcry vow that was counted in that 

parish was upon the affidavit of a man who said he hail not voted. The Chief Clerk resumed the reading, as follows: 

Q. Wor there any other parishes in tho same way, that were thrown out on- tit·ely1 · A. I do not at this moment recollect any. 

Q. How many votes were thrown out in the first parish you named f How many 

did you reject~ 

A. I do not know that; we r ejected the whole thi~,g. 

Q. State how many that was as near as you can teJJ.. 

A. I cannot tell. 

Q. \Vas it 100, or 1,000, or 2,000~ 

.A. I cannot tell. • 

By Mr. CARPE~'TER: 

Q. Will those returns be here showing that precisely 1 A. Yes, sir; we rqjected the whole parish on the grounu that wo believed it to have been an organized fraud, and that we could not have <letermine£1 who the votes were cast for, nor what was the intention of the voters. Q. Did you throw out the regular vote in any other pari hes except in thoso two¥ A. Yes, sir. Q. Did you throw out the vote in the whole parish in any other ca,~e7 

A . No, sir; I do not remember of any other whole parish now. Q. Thoro wa.'J no other parish that you threw out in full. 

A. Nono. 

Q. You threw out a part of the vote in other parishes¥ 

A. Yes, sir. 

Q. Can you name the parish 7 A. Yes, sir; we threw out some in the parish of Orleans, which the minutes of 

the board will show. I cannot state them accurately. Q. Do you know the number of the po~, or can y:ou designate the vote thrown out 9 

A. I cannot tell from memory; the nunutes will show. 

l't:lr. CARPENTER. Now I ask the Clerk to read from the testimony 

of Mr. Lynch, on pages 157 and 158. The Chief Clerk read as follows: 

By Mr. CARPENTER: 

Question. What do you mean by saying you set aside a part of n. poll in somecases1 

Answer. Not a part of a polL In a case where the irregulalities presented were such, wo threw out tho whole poll. Q. I th\nk 1 underst1md you. A. Then here are a.ffiua.vits presented by parties that were prevented from depositing their ballots at all In that case we counted them. 

Mr. CARPENTER. That, is they reject-ed the whole of the return, 

and then they counted the affidavits of men who swore that they had 

not voted. • The Chief Clerk resumed the reading, as follows : 

Q. In some caaes you threw out a part of a poll? A. No, sir. 

By the CHAIRMAN: 

Q. You mean you threw out the vote of some parishes. A. Some parishes were thrown out completely, and in some cases polls only. 

Q. Entire polls 7 A . Yes, sir; entire polls. 

Q. I will ask whether iu any ca e where the vote waa thrown out you would make 

any estimate of what the vote fairly was in that poll and count it. 

A. No, sir. 

Q. You would actually count >otes u~n affidavits. 

A. Upon affidavits, except in the pai1.shes I stated where we had no returns, and 

whoro wo took thorn on the basis returned by t.he opposition. 

Q. Bywhat1 A. By the opposition. We took all the eviMncewe had before us and our knowledge of the panshes and their political complexion, and we then decided. 

By Mr. CARPE~TER: 

h~o y;~~nestimated it~ then, upon the basis of what you thought the vote ought to 

A. Yos, sir. Thatwasjustthefact, and I think on the whole we were pretty cor- rect. 

Mr. CARPENTER. Now I ask the Clerk to read the testimony of 

the same witnes on page 1G2. 

Tho Chief Clerk read a-s follows : 

Q. Does not the board canvass all the returns f 

_.A. Y:es, sir; it is myimprossionthat Mr. Bovee was a candidate for police jury in 

his pansh. th~ia~ftg such a. candidate, would ho not be excluded from acting on tho board by 

A. Tho section of the law would seem to look that way. 

Q. Would seem to exclude him ¥ 

de!id;es, sir; I have read the act, but that, of course, is a legal question I cannot 

-Mr. CARPENTER. Now I ask the Clerk to read the testimony of 

the same wituess on pages 165 and 1G6. 

The Chief Clerk read as follows: 

Q. Did you have any official returns before you furnished under the laws of 

Louisiana--

A. Did wo have any 1 Q. Yes; did you have any 1 A. Not unless those I have stated 

Q. Did you have any at all¥ 

A. No, sir; I do not think we had. 

Q .. You had no official returns furnished in pursu:tnce of the laws of Louisiana 

before-1_ou1 

A. No, .sir. 

Q. You made your canvass without those 7 -·\.. Yes, sir; wo camo to the conclusion that there were no official returus in 

e:riswnce, as the law bad been trampled upon. 

Q. Would tho law having been trampled upon prevent an official return from 

being an official return as well ¥ _ A . No, sir; I suppose not. Q. Then there were official returns somewhere 7 A. Yes, sir. 

su~p:Oh;:~·h~~~c~l~~~~~, ou gave notice to Governor Warmoth, did you not 

A. Yes, sir. Q. Then there were official rotu.rns? 

A. Yes, sir. 

Q. They were not before you 7 A. No, sir. 

Q. You counted votes in your estimate which were not polled at all, diu you~ 

A. Yes, sir. 

Q. Well, upon what ground 1 · . A: On the authority of the United States law, and on the ground or principle of 

JUstice. 

vo~ ~ the principle of justice you think if a man does not vote he ought to have 

A. That is hardly the position; but when we were satisfied a man was prevented 

from voting. 

Q. You then counted it as if he had voted7 

A. Yes, sir . 

Mr. CARPENTER. Now I 3$k the Clerk to read from the testimony 

of the same witness, on pages 167 and 16H. 

The Chief Clerk read as follows : 

By Mr. TnmmULL: 

Q. What do you mean by democratio returns 7 Did the democrats make returus 

tolou ¥ . No, sir; but we had returns from thatsouroo, democratic sourcoo. Q. What do you mean by that1 

A. 0, well, I do not say returns; we had results published from those sources. Q. Do you mean ofljcia1 results 1 A. Not official, technicall.y, but what purported to be official. 

Q. Yon called them democratic 7 A. Not necessarily democratic, but they camo from those sources· they were published in some cases in the democratic papers as coming from both sources. We 

relied upon those in the absence of testimony, and not being able to get other testimony, we gave that ns the result. 

~ih~!:~~ not throw out two wards in the city of New Orleans, the eighth and 

A. We simply stated that the returns before us would not justify us inprocla.imin~~t ~~~ ;ards 7 A. Yes sir ; in two wards. 

Q. How many votes were there in those wards 9 

A. I cannot state. Q. Were there five or ten thousand~ 

A. The record will show it. 

Q. If it does show it, state as near as you can. A. I do not mean the resultihaveprintedhore, bntthereturusfromNewOrleans. 

There is no question about it., as the history of this ballot-box given in these tally-

~=~~~~ evidence submitted in connection with this that prevented our making 

Q. You made no returus from two wards 7 A. None. 

Q. H 11ve you no idea of the votes of those two wards 7 

A. I do not remember, sir. 

Q. Can you not tell whether there were one hundred or two thousand voters in 

those two wards¥ 

A. I am not posted in the politics of the city, and cannot state from memory. 

Q. Cannot you state anything about it 7 A. Not exactly. 

Q. I do D;Ot aak for it exactly. Can you tell within a thousand votes 9 A. No, srr; I could not. Q. Were they democratic or republican 1 A. Those wards t Q. Were they Greeley or Grant wards 9 A. Now¥ 

Q. At that time, when you threw them out and did not count them, were they Greeley or Grant wards~ 

A. My impression is that they were Greeley wards. 

Mr. CARPENTER. Another witness, Mr. Jaques, appeared before 

the committee, and at first I was strongly impressed with the belief 

that he was lying, that his whole story wa-s made up, and I went for 

him with a pretty thorough cross-examination, followed him through 

several pages, and finally became thoroughly convinced that the man was telling the truth. He swore that he had forued twelve hundred 

affidavits; he said he took the names from an ol8 worn-out poll-list 

that a ~eat many of them were dead, and a great mariy probably never d1d live. He made up the affidavits without seein~ the men ; 

hundreds of them. They were certified as sworn to in olank by a judge before they were filled; and the proceeding, as he testifies to 

1t, is one of tberic~est that I know of in the history of politics. His 

testimony-! will not. stop to rea<l it-is found on pages 520, 521, 522, 

and 523, and pages 526, 527, 528, and 530, and full;y; sustains all that I 

say. 

The affidavits were printed, and they were delivered to this fellow 

to be manufactured, and with the jurat of the judge atta~bed certifying that---- had sworn to the affidavit. Then Mr. Jaques 

took the affidavits, filled them up, signed uames to them, then delivered 

twelve hundred of them at one time to :Mr. Bovee, in the open session 

of the board, the testimony leaving no doubt that the board knew 

that thoy were forged affidavits; and, indeed, be says that Bovee 

joked him afterwaru for days by asking if they had got through votin cr 

up at Plaquemines Pru.:ish. "" 

In the parish of Tangipahoa: Barkdull swears, on pages 562, 563, anu 564, (which I will not take the time to read as I am occupying so much 

time,) to a very remarkable state of things, and I give the pages so that any Senator can refer to them. The returns show in that parish that Tait had 111 maJority over Wands-Tait being the democratic candidate. The witne ·s went to this parish to investigate, and 

founu that there was no particular fraud; nobody had heard of any; 

and he came down to one of our republican men, and he said, "That 

won't do; you have got to go ba~k; we are boa ten unless we make 

out some fraud here." H~ went back, got up some affidavits, came down to this bo:trd, and they gave Wands 750 and Tait 622; that is ~stead of giv;ing Tait, :1s tho returns showed, 111 majority, they gav~ hlS opponent 128. . This is a fa.ir sample and by no means· an e::mggerated statement; 
,.._ 

1044 CONGRESSIONAL RECORD. JANUARY 30, 

it is taken at random from -the proceedings of that board. They 

went through in this way and reached the end of their labors on the 

6th of December, 1872. The entire returns from the State showed 

that McEnery had 65,579 vote~ and that Kellogg had 55,9n votes, so that ·McEnery's majority was :;~,606. That can be seen in this report on page 81. This Lynch ~oa_rd gave Kellog:g 72,890 and McEnery 

54 0~9 making Kellogg's maJonty 1 ,861; that Is, m place of McEnery's m~jorlty as shown by the returns being 9,606, they gave Kellogg almost 

twice that, 18,861. They were not going to do things _by halves. If 

they were going to have a governor they were not gomg to stop on the majority that the democratic governor in fact got; they were o-oing better, and they doubled and gave Kellogg 18,000. The returns ~bowed Penn'~ majority to be 15,000, and they gave Antoine 18,000. . Now in:- passing from the proceedings of this Lynch lJoard, let me stop fdr a moment to enumerate the objections to their proceedings. In the first place, there was no board of any kind. That I have 

shown. There never was but one man who ever met at any place • with other men having a legal right to sit in the board. That was Warmoth with one body, and Lynch with ·another; the two men 

never coming together, and their associates never ~vi!lg .b~en m_embers of the board. Then both boards were under vahd IDJunctions 

from making a count. The -w:armoth board respected the injunc?o~; 

the Lynch board disregarded It. In the next place, they had no JllTISdiction to inquire beyond the returns for want of a statement from 

the commissioner showing riot or fraud. In the tl1ird place, they had 

not a sin o-le return to canvass. In the fourth place, on the. 20th of 

Novembe;, Wa.rmoth approved a law which he had carried in his 

pocket for six months, abolishing the board _altoo-ether: An~ I ~ay 

here remark that if Governor W armot.h, c.arrymg the entrre legislative 

power of that State in his pocket, coul4. not abolish that board, then I 

undertake to say that board is immortal, and it never can be abolished. 

But, Mr. President, there is another feature of this case worth con- sidering. This canva s made by the Lynch boar~, alth~mgh u~_erly 

void was exceedingly profitable to the board. Vrrtue m LoUISmna 

has its reward, and right speedily, too. Mr. Lynch testifies that Pinch back immediately appointed his son to 

be inspector of live stock, &c., an office worth from $10,000 to $15,000 a year. This commission was. delivered to Mr. Lynch for his son. The son WIJIS an engineer on the Southern Pacipc road, and was then away 

in the direction of Texas, five hundred miles from New Orleans. By 

letter the father _arranges with his son tha.t he shall appoint a cer:tain · man inNewOrleansto behis deputy or clerk. That arrangemonhsall 

made by letter, and Pinchback d~live~ the commission to Lync~ by 

which the son became clothed With th1s office. The father te ti.fied 

that, on reflection, be thought it might not be well for him,. after 

having made this canva s, to have his son hold th~t office; so his son resigned it. But after Mr. Lynch had been exammed be went back 

to New Orleans, and Kellogg appointed him to the identical office, 

and he holds it to this hour, au<l it is worth from $10,000 to 15,000 per 

annum. Herron, during the political campaign, "TJ.'ote from New Yorlf a · letter which I will ask the Clerk to read, found on page 572, refeumg 

to Southworth, who was recorder of deeds at New Orleans. 

The Chief Clerk read as follows: NEW YORK, September 3, 1872. 

DEAR CAPTAI_N: The papers gi~e intelligence ~f the ;fusion, and ~earti.ly gla4 was I to ee it. This makes the election of the combmed ticket a certainty, and will do 

much toward helpin"' the ca.u e in theN orth. I shall p_et home in time to help, and to a sist in the count and make the certificates of the' duly elected." In the mean time as you and I are both very fond of Dr. Southworth, I think I shall have to ~et 

you to speak to Governor McEnery for his pla-ce. Of course we do not want hun turned out, but under the circumstances, &c., let us ask him to retire. There~ no sort of question about the election of Greeley, but the Grant people are making 

great exertions. With regards to all, 1 am, Truly, yours, · F. J. HETIRON. 

Captain J . C. SINNOTT. 

Mr. CARPENTER. He bad a desire to be recorder of deeds. He 

went home, he changed his views as to who bad been elected and 

who bad carried Louisiana, but he saved the place of recorder of deeds 

for New Orleans; Pinchback appointed him to it. • Longstreet is levee commissioner, appointed by 1\Ir. Pinchback, a place worth $6,000, salary fixed by law. 

Now see bow handsomely Hawkins was provided for. The Legislature abolished two courts, created a new court, and conferred upo_n it the j urisdiction that pertained to both the former courts. Of this new court Hawkins was appointed judge, with exclusive jurisdiction of cont-ested elections, injunctions, and mand.amu,ses. Faithful over a few things, made ruler over many things! [Laughter.] He was so useful in the canvass of Kellogg he shall canvass everyuody; 

all contested elections shall be decided by Hawkins! 

Nor did the Legislature forget Mr. Pinchback. The Lynch board 

canvassedinaLe~lature, and the Lezis1ature madePinchbaok gov- ernor by impeaching Warmoth, and Pmchback rewarded the Lynch board. No wonder that these functionaries all recognize each other as entitled to hold their I'espective offices. That made Pinchback 

governor. And they did not forget Pinchblltlk even there. The Legislature, so manufactured, further rewarded Pinch back by sending him 

to the Senate. Whatever else may be said of these rascals, they certainly are kind 

t o ea-ch other. [Laughter.] All t hese adjustments of reward were 

made between December 9,1872, and the second Tuesday of January, 

1873. Prompt pay! Adequate pay! 

Here I bid adieu to the Lynch board. When my friend from Indi- ana comes to reply, :_tnd brings this Lynch board again to the front 

for effective service, I commend him to a careful examinn.tiou· of the 

facts which I have read from their own statements, mn.de under oath 

in his and my pre ence. . 

I now come, Mr~ Pre ident, to consider the interference of the General Government in this muddle. November 14, 1872, the board of canvasser divided, as I have before stated, into the Lynch board aml 

the Warmoth board, and proceeded to litigate. While this conte t was going on, on the 16th of November, Kellogg collllllenced suit in 

the United States circuit court, and Durell issued an injunction, or restraining order, which I will ask the Clerk to read from pages 13, 

14, and 15 of the report. 

The Chief Clerk read as follows : 

United States •f America, circuit court of the United States· fifth circuit and district of Louisiana, November term, A. D. 1S72. 

WILLIAM P. KELLOGG 1 vs. No. 6830. 

H. C. W AIDiOTH et al. 

NEw 0RLEA..'ffl, Saturday, November 16, 1872, 

Court ~et pursuant to adj~urnmont. Pre.sen~ ~on. E. H. Dn!ell, district judge. On motion of J. R. Beckwith, counsel and so lim tor for complamant, it is ordered 

that H. C. Warmoth, Jack Wharton, ~ ~- !futch, Durant DaPonte, John 

McEnery, and the Ne:w_ Orleans Republican Prmting Company, publishers of the Ne~ !)rleans ~p.ubhcan, a newsyaper, bei?g the official journal of the State of 

Loms1ana, be e!!Jomed an~ restramecl from m an.v manner, either directly or indirectly, pret.endi.ri.g to cons1der or canvass anv certificate, statement or return of anv supervisor of registration, except in the presence of the leaal r~turninp: officers 

named in the bill of complaint filed this day, to wit, John L~ch Ja{)ob Hawkins 

James Lon~street, and Francis J. Herron; and it is further order~d thattbesaid H: 

C. Warmotn desist and refrain from submitting to the defendant Jack Wharton 

Frank H. Hatch, and Durant D~ Ponte, or any or either of them, either a.<:! pretended members of any board of returnin.e: officers of elections of the State of Louisiana, or as individual.~, any statements, certificates of returns, orpretendedst.atements cer- ~c~te.s, or returns of election, and to desist from a.ssistin.e:, aiding, abetting, o~ per- nnttin~ any other person or persons whatsoever, other than JOhn Lynch, Jacob 

Hawkins, .'Ta~es Longstreet .. and Francis r Herron, or their duly qualified success- ors, as retnrnin~ officers, to mspect, consider, or have custod of or acce s to said 

statements, certificates, or returns of said supervisors of registration or any other 

paper, ducument, affidavit, or proof that may have come into the hands of the said 

Warmoth, or shall hereafter come into his hands, relp.,ting to said election, or to the 

fairness or correctness th!3reof, and which by law it is his <_lut_y to submit to the said 

John Lynch, Jacob H..'l>wkins, James Longstreet, and Francis J . Herron. the said legal board of returning officers of elections, and which should be properly considered by them. . 

And it is further ordered that the said H. C. Warmoth, Jack Wharton, Frank H. Hl!'tc~ and D~t Da Ponte, ~nd ~h of them, be commantled and enjoined to rerram and deSlSt from pretending to acli to.,.ether as a board of returnino- officers or as returning officers of election, from ca~:rvassing or attempting to canvass 0~ consider any certificate, document, affidavit, return, statement of vote ur any 

paper whatsoeverJ>roperly relating to said election mentioned in the said bill of 

complaint, and from a~mpting to. make a. canva s, to make, declare. or publish 

any pretended deduction, calcUlation, statement, or proclamation based thereon or pretended to be derived therefrom, in any way relating or pert:\inino- to said 

election mentioned in the said bill of complaint, held on the 4th day of November 1872 .. ~r certifying to any candidate for office at said election, any ·certificate of 

election, or any statement of the result of said election ten din~ to show any right to office in any person growing out of ballots cast at said electmn and from meddling with, altering, suppre sino-, falsifying, obliterating. or destr~ying any document, paper, voucher, proof, sta~ent of votes, or certificate relatinrr to aid elec- ~~m. And i~ is furtll~r <?r~ered tha~ the aaid John M~Enery be co'fnm.anded, en- Jomed, restramed, and inhib1~e?- from many mann~r a-cting ·or pretending to act as governor of the State of Loms:mna, and from making any pretensions or as erting 

any claim to the office of governor of said State by virtue of any pretended evidence of eleo~on _tbe!eto under or by virtue of any certificate, document, or connt, canvass, or atlJU~Icatiou now or hereafter made by the said defendant H. C. Warmoth, and the S3.l.d defendants Jack Whart.on, Frank H. Hatch, Durant Da Ponte 

in th!-s .bill charged to be unlawful!~ combined and conspir~ as returning officers: 

And 1t 18 further ordered that the sa1d .l' ew Orleans Republican Printin.e: Company under whose control and direction tbe newspaper called theN ewOrleans Republican' 

the <?fficialjourn~.of the State o~ Louisiana:, is published, whert:Of W . R. Fish is 

pre 1dent, be eDJomedand restramed from m any manner pnblishinu any official 

notice, document, or statement relatin~ to any canvass or statement of votes made or pretended to be made, orin aay manner emanating from the said H. C. Warmotn: 

and said Jack Wharton, Frank H. Hatch, Durant DaPonte, or either of them as a pretentled board of retm"Ding officers of elections, in any 'manner relatinrr to the 

said election held on the 4th day of November, A. D. 1872. " 

And it is further ordered that the said defendants H. C. Warmoth, Jack Whar- ton, Frank H. Hatch, Durant DaPonte, John McEnery, and the New Orleans Republican Prin~g Company, llilm.ed in th_e bill of complaint this day :filed. be so commanded, enJomed, and restrained until the further order of this honorable court. 

Mr. CARP&~TER. 'l'hat, you will see, is rather a remarkable doc- ument to be issued by a judicial officer, and still more remarkable 

when issued by a judicial officer of the United States who had no jurisdiction whatever· of any suit brought to inquire into the ques- tion which of these two boards was the legal canvassing board. The 

bill filed before him wa-s a bill merely to perpetuate testimony · that 

is, the returns themselves; but in this injunction he n. nmes to determine which is the legal board and which is the illegal board, and a.ssumes to take the governor of that State into his jurisdiction and 

command him how he shall perfoTm his duties under the election law 

of 1!:370. 

But Governor Warmoth was not to be outdone in this way; and at 

this juncture of affairs he approves the new election law, on the 20th 

of November, 1872, which abolished the board without reo-ard to 

which class of persons constituted the board. It abolisbecl"'it by a total repeal of all former election laws, and provided that a board of canvassers should be elected by the senate, and expressly and flatly 

and in words repealed every prior election law. Of course, all the 

rights that t hese men, any of th em, h ad to proceed as a canvassing 
1874. CONGRESSIONAL RECORD. 1045 

board, they pos e sed under the election la,w of 1870; and when ~his 

act was approved it repealed the election law of 1870, and their authority, whatever it was, was thereby extinguished. 

On Lhe 3d of December Warmoth appointed a new board under 

thiB bill, which he claimed created vacancies in vacation. And in one sense it did, because it legislated the old board out of existence and 

provided for a new board; and the bill was approved in the vacation 

of the Legisla,ture; and it certainly did create offices which were vacant. The board thus appointed iB called the De Feriet board; 

consisting of five persons, whose names may be found in the report, 

and the governor laid before them the returns which had come to him as governor, and which ~twas the duty of the board of .c anvasse~s, 

if anybody couldnscertarn who they were, to canvass. ThiB De Fenet 

board canvassed the returns, and the result of their labors was proclaimed in the New Orleans papers, in the form p1:escribed by law, on the next day, December 4. 

On the 6th of December Judge Durell seems to have become apprehensive that Warmoth was getting ahead of him. The judge's injunction, issued without the slightest authority, had been met by an act approved by the governor by main strength on the 20th. This 

act in its turn was overthrown by another proceeding of Judge Durell, 

which has no parallel in judicial hiBtory. On the 6th of December, 

at two o'cl~ckin the morning, J~dgeDurell, at his owr;tJ;touset without 

being applied to by any party, Issued an order for se1zmg the state- house, which I will a k the Clerk to read from pages 16 to 17 of the 

report. Mr. EDMUNDS. What do you mean byhis not being applied toby 

any partvY Mr. CARPENTER. He went home to take hiB dinner, put on his 

slippers, reviewed the :field of operations, and finally took it into hiB 

head t6 issue an order seizing the state-house. 

The Chief Clerk read as follows: 

Circuit court of the United States, fifth circuit and district of Louisiana, in 

equity-No. 6830. William P. Kellogg vs. H. C. Warmoth et als. Whereas Henry 

C. Warmoth, one of tbe respondents herein, bas, in violation of the restraining order 

herein, issued the followin~r proclamation and returns of certain persons claimin~ to be a. board of returning officers, all in violation and contempt of the said restraining 

order, as follows, namely : 

PROCLAMATION. 

STATE OF LOUISIANA, EXECUTIVE DEPARTliENT, 

New Orleans, Decembe1· 4, 1872. 

Whereas P. S. Wiltz. Gabriel DeFeriet, Thomas Isabelle, J. A. Taylor, and J. E. , Ansti..Il, returning officers appointed by ·the governor to fill vacancies existing, in 

accordance with the constitution and 'ia.ws of the State of Louisiana, have made 

declaration of the result of an election held November 4, 1872, and have declared 

oortain persons elected to tbe senate and house of representatives of the State of 

Louisiana, as will appear from the returns herewith attached and ma~e a Pfll't of this proclamation; and whereas snob returns are compiled from the official returns of commissioners of election and supervisors of registration, on tile in this office, 

and are in fact and in form accurate and correct, an{T made in accordance with law: 

Now, therefore, I, Henry Clay Warmoth, governor of the State of Louisiana, do 

issue this my proclamation, making known the result of said election aforesaid, and 

command all ofiioors and persons within the State of Louisiana. to take notice of 

and respect the same. Given under my hand and the seal of the State this 4th day of December, .A.. D. 1872, and of the Independence of the United Sta.tes the ninety-seventh. 

H. C. W .A.RMOTH. 

By the Gi>vernor: 

Y . .A.. WOODWARD, 

Assistant Secreta1·y of State. 

Now, therefore, in order to prevent the further obstruction of the proceedings in 

this canse and, further, to l?revent a violation of the orders of this court, to the 

imminent •'aan&er of disturbmg the public peace1 it is hereby ordered, that the mar- shal of the Uruted States for the district of LoUI.Silma. shall forthwith take posses- sion of the building known as the Mechanics' Institute, and occupied as the state- house for the assembling of the Legislature therein, in the city of New Orleans, 

and hold the same subject to the further order of this court, and meanwhile to pre- vent all unlawful assemblage therein under the guise or "retext of authority ?laimed 

by virtue of pretended canvass and returns made by sa1d pretended returning offi. cers in contempt and violation of said restraining orne~; but the. mar~al is. ~ected to allow the ingress and egress to and ·from the public offices m sa1d building of persons entitled to the same. E. H. DURELL. 

Mr. CARPENTER. So you will see, Mr. President, that is the order 

of the judge, not of the court. The testimony shows till.at h;e went to 

his lodgings, and about eleven o'clock -at night he iBsued thiB order to 

seize the state-house. Nobody applied to himforthe order. He was neither sitting in chambers nor sitting in court. He does not pretend 

to issue a writ. ThiB order ha-s no·form of judicial process. It iB not 

directed to the marshal; it is not attested in the name of the Chief 

Justice of the United States ; it has not the seal of any court ; it is the mere order of the diBtrict judge, at hiB chambers, at midnight, com- manding the marshal of the United States to seize the state-house of a State. The marshal executed that order, and a company of Federal 

troops garrisoned the state-house at midnight and held it in military 

custody for more than six weeks, during which time the farce of or- ganizing the Legislature on the ntandamtus of t~ sax_ne judge w.as enacted, and Pinchback wa-s elected Senator by thiB LeglSlature while 

the state-house was held in military custody. At eleven o'clock a.m., 

December 6, Durell made the restraining order which he had made 

before a perpetual injunction. The same day the Lynch board com- pleted their canvass, and December 7, 1872 Antoine commenced his 

suit, the state-house being in possession of the troops; and in that ~t Durell issued the injunction and mandamus, for it is both, upon which 

the Legisla,ture of the State was organized. Now, without taking time to read it, as I had intended to do-for I 

am getting too weary to do that-let me call your attention to the 

extent of the jurisdiction of the Federal court in respect to a State 

election. The :fifteenth amendment to the Constitution provides that no man shall be deprived of the right to vote on the ground of race, 

color, or pmvious condition of servitude, and that the Congress shall 

have power to legislate, so as to give effect to this amendment. Congre has legislated; and has provided that if any man shall be deprived of an office in consequence of a citizen havin~ been denied the 

right to vote on the ground of race, color, or prevwus condition of 

servitude, he may bring his suit and be installed into the office by the 

judgment of a Federal court, except it be the office of "elector of 

President or Vice-President, Representative or Delegate in Con~ress, 

or member of a State Legislature." The very act of Congress under 

which Durell pretended to proceed and entertain a suit to organize 

this Legislature, in express words excludes members of the Legislature from the jurisdiction which is ~anted by the act. If, for 

instance, a ma.n iB a. candidate in Louisiana, and is defeated by five 

majority, and he can show thnt ten colored citizens went to the 

polls and offered to vote for him; but were denied the ricrht to vote 

upon the ground. of race, color, or previous condition of servitud~, then he may have his office adjudged to him by the Federal court, 

unless the office for which he was a candidate be that of elector of 

President or Vice-President, Representative or Delegate in Congress, or member of a State Legislature ; but in no case has a Federal court 

jurisdiction as to the e offices. So that the Federal court was without 

the slig~test pretext or show of jurisdiction in the Antoine suit. It was a suit brought by the lieutenant-governor, to declare who had 

been elected to the Le~slature, and to restrain another class, who were pretending to be elected, from taking seats in the Legislaturethe very case excepted by the act of Congress from Federal jurisdiction. The judge enjoined the officers of both hou es of the LegMlature from calling the democrats ; it commanded them in the form of a mandarnus t.o call the republicans; and under that injunction and 

ntandanws the Legislature wa or~anized which made this pnn.ia facie 

case, which the Senator from Indiana says has been so indorsed and so sanctioned that it has stripped the Senate of itslconstitutional 

power to determine whether Mr. Pinchback has been elected by the 

Legislature. I will have that paper read, and I wish it could be read 

in the hearing of every citizen of the United States. 

The Chief Clerk read as follows : 

Circuit court of the United States in and for the district of Louisiana. 

C. C . .A...TIOINE ~ • vs. No. 6861-in equity. 

H. C. WARMOTH et als. 

Restraining order.-Is8'1.1£d December 1, 1872. 

Whereas the plaintiff herein bas this day filed and exhibited his bill of complaint ag:~t the said defendant, H. C. Warmoth, and the other defendants named in said 

bill of complaint and has therein prayed that injunctions, pen!knte lite, issue 

against the defen~ants therein, and that a restraining order be also issued restraining the said defendants as prayed for in said bill from doing or permitting to be 

done the acts in said bill compl:iined of : Now, therefore, on motion of J. R. Beckwith and E. C. Billinas, solicitors for 

complainant, it is ordered that the defendants named in said bill dos'howcauseon the 

11th· day of December, 1872, why injunctions, pendente lite, should not be allowed as prayed for. It is further ordered that said defendants each and every one of 

them be, and are hereby, commanded and restrained to the extent ancl effect as in 

said bill of complaint prayed [the clerk will attach to this order a copy of the prayer for injunction as set forth in said bill of complaint] until the bearing and determination of said rule for injunction, and until the further order of the court in the 

premises. 

E. H. DURELL, Judge. 

A true and correct copy o{the original order on file in this cause. F. A. WOOLFLEY, Ol.erk. 

Mr. CARPENTER. It will be seen that thiB order restrains the 

parties according to the prayer for relief in the bill, which must be 

read to show the extent of the injunl5tion. 

The Chief Clerk read as follows : 

Wherefore your orator humbly prays that your honor will grant unto him all just 

and -proper relief in the l?remises; that you will allow and grant unto him the most grac1ous writ of injunction issued under the seal of this honorable court, directed to tbe said defendant, Henry C. Warmoth, enjoining and restraining him from in any ma.nnet, directly or indi:i-ectly, by himself or through any other officer of the 

State, city, or parish, or through any other person, from controlling or attempting to control, interferin~ with, or attempting to interfere with, the organization o1 

either branch of this General Assembly of the State of Louisiana, called to assemble on the 9th day of December, A. D. 1872, or that may be cnlled to assemble at any future day, and from directly or indirectly, either by himself or through any other person, preventing any person. claiming to be a. member of said Generill Assembly from having full and free ingress and egress to and from the place, bnllding, and room of that branch of said General Assembly of which he may claim to be a mem· ber, or from isSuing any written or oral order or instruction, request, or direction, 

calculated or de igned to directly or indirectly control or interfere with the organ- ization of either of the branches of said General Assembly, or calculated or designed to prevent any person from having free access thereto, who claims to be a member 

thereof, and from doing any act, or from giving any order. direction, or making any request which may, directly or indirectly, prevent or hinder any person from being 

present and taking part in the organization of said senate, called to con\ene on the 

said !)tb day of December, or at any future day, who may be returned a a member 

thereof by the board of returning officers, composed of the said Henry C. Warmoth, 

George E. Bovee, James Long_street, Jacob Hawkins, and John Lynch, and whose name shall also be transmittea by the said George E. Bovee, secretary of state, to Charles H. Merritt the secretary of the sena.te of the last General Assembly, and 

:pl:wed by the said Merritt upon the roll of said senate, so to be convened, and from many manner, directly or indirectly, aiding or abetting any person who is not so returned by said returning board as a member of said senate, so to be convened, 

and whose name is not so transmitted as a member elected to said senate, and is not so placed upon the roll of sai<l senate, from ~articipating in the organization of said 

senate, and from doing any act, or from givmg any order. direction, or making any request which may, dfrectly or indirectly, prevent or hinder any person from l>eing 
1046 CONGRESSIONAL RECORD. 'JANUARY 30, 

present and taking part in the' organWation of said house, called to convene on the 

l!ai<:i 9th day of December, or that may be called to conveno at any futuro day, who 

may bo returned as a member thereof by the board of returning officers composed of the said Henry C. "'Warmoth, George E .. Bovee, .James Lon:?street, .Jacob Hawkins, and .John Lynch; and whose name shall also be transmitteu by the said George E. Bovee, secretary of state, to William Vigors, tho ecretary of the bouse of tlie 

la t General Assembly, aud placed by tho saiu \Villiam Vigers upon the roll of said 

house, so to be convened, and from in any manner, directly or indirectly, aiding or abetting any person who is not so returned by said returning board ·as a member of 

said bouse, so to be convened, ancl·whose name is not so transmitted as a member 

olectecl to said house, and is not so placecl upon the roll of said honsel from participating in the organization of said house; except that the said Henry C. Warmoth 

1s not hereby prohibited from participating in tho canva,ss and return of the mem- ·bers elected to the said branche.~ of said General .Assembly, so to be convened, providell he do the same in conjnnction with and in the presenco of said George E. 

BoYee, .James Longstreet, .Jacob Hawkins, and .John Lynch, bnt not otherwise. 

.A.nd that bc further he enjoined and restrained from in any manner obstructing or hindering the sairl William Vigcrs, clerk of the house of representatives, or the 

said secretary of the enate, Charles H. Merritt, in the free and unobstructed discharge of their lluties, or in full and complete obedience to the orders of thisconrt~ 

and from suspending, removing them, or either of them from office, or appointing or ordering, or abetting any other pe1 on or persons to perform nny act which by law or. the orders of this court deYolves on citheL" the saill Vigors, Merritt, or upon George E .. Bovee, secretary of state, and from reco~n" any validitv in any act doue or porformed by any other person or persons pr tending to act in tb.e office or capacity 

of ei~her of said officers. 

.A.ml that a writ of injunction may also issue, directed to A. S .. Badger, chief of 

metropolitan police., ancl to each mrmber of the board of the metropolitan police, and to the board of metropolitan police, enjoining and restraining them and each 

of them from interfering in any manner with the organization of either branch of 

the 'General As embly to be convened on tho 9th of December, A. .. D. 1872, or at any 

tinle thereafter, except to presCTYe tho peace, and to 11reveut no person from having access to either of tho balls of said houses who is certi.fiod by Georgo E. Bovee 3B 

being a. member-elect of the samo. 

:Mr. CARPENTER. That metrop litan police wero a part of the 

militia. of the State of Louisiana.. The district judgo having taken 

pos e§sion of the state-house by Fetloral troops, enjoined the State 

militia. from interfering. 

The Chief Clerk continued the reacling, M follows: 

.A.nll that ~Tit-s of injunction also i sue, directed to the saicl E. Booth, A. Voorhees, A . .J .. Lewis, B.]' .. .Jonas, T. B. Stamps, D. S. Cage, R. C. White, T .. C. Ander- son, .J. M.. Thompson, E .. S .. Weber, A.. S .. Herron, Robert Worrall, 0. H. Brewster, E. M. Graham, .J. W. McDonald, A .. H. !&onard, C .. .J .. C. Puckett, .James G. White, 

.J. F. Kelly, enjoining and restraining them and each of them from p:irticipatinKin any manner in the organization of tho sennto to be convened on the 9th day of .ue- comber, A.. D.1872, or at any timo thereafter; or from doin~ any act or thing toward, 

in, or about the organization of s:till senate, either by castin..., a \Ote or otherwise, 

unless his name GhaJl be and appear on the list of names of members of said senate transmitted t.o the l'!ecretary of the same by George E. llovee, secretary of state, a ba;ing been elected thereto. .And tllat a writ of injnnotion also issue to the saiu .J .. J. Mellon and .James Timony, .J. A.. Sbakespeare, .J. A .. Rico, .J .. .J. Finney, E. H . McCaleb, Charles Montaldo, 

W . R. Barrett-, W .. L .. Standfonl, T. B. Blanclwnl, ,jr .. , ]'. C .. Zachario, F. Fn illicr, 

Y .. 0. Kin"", A.. Garidel, L.. . Rodoriguez, .John Barrow, John Delaney, William 

tevens, W. C. Kinsella, C. Kumml'll, J. B. Eustis, .J. McConnell, A. . .J. Dumont, E .. L. Bowers, E .. Riviere, P . Landry, C. N. Lewis, E. B .. Cox, Numa Vives, T . .J. Eelwards, W. JL .Johnston, T .. L Mills, T. Bynun1, .J .. S. Gm-dere, J. L. Lobdell. W. S. 

Cockernam, W. H. canlan, L. P. anclidge, .J. C .. Moncm·o, ~orge L. Smith, :.r. Sella, 

Martin, W. H .. Kirkman, Thomas J. Humble, Paul· .Jones, George C. Bonham, Cain 

Sartain, Allen .J. Davis, W. F . Morelaml, Thomas Prico, David· Young. George Washin~t(ln,.J.P.Elam, .A .. F. Stephen on, John Goir, .Tame::! Laws, .James W. Arm· 

l'!tead, 1!. W. :Norris, .J. H. Hadnot, L. A. .. Snaer, .J .. K. C::a.vannaugh, E . .A .. Rubin, William Kem, C .. W. Lowell . .J. D. Trahan, .JohnS. Billinl, 0. I1arang, T: G. Da.-

vidson, .James R.. McDowell, C. C. Davenport, E. L. Pierson, W .. A.. Ponder, W. F. Southard, D. Hill, H. Mahoney, .J .. P. Harris, L. B. Claiborne, L. Texada, .John .J. 

Swan, .J. G .. P. Hooe, E. W. Dowees, H. F. Vickers, .J. F. Smith, R. V . Ducro , M.. Halm, D. K. Gorman, Henry Demas, Benjamin R. Gantt, .J. F .. Little, E. D. Esti- lette, L .. D. Prescott, V .. Bochou, L .. A. .. Martinet, .James Costello, M . .J. Foster, .J. G. 

Tate, .J. R. Stewart, .J. S. Mathews, J . .J. Booles, P. Fontoliu, .J. R. Smart, A.. C. 

Bickham, .J .. P. Schultz, William A. Stron.~. enjoining aml restrainin~ them, and 

each of them, from participating in any manner in the organization of the house of 

representatives to be convened on the 9th day of December, A. D .. 1872, or at any tin1e thereafter, or from doing any act or thin..., toward, in, or about the organizar 

tion of the same, either by casting a voto or oilierwisl', unless his name shall Do and 

appear on the list of namos of members of said house transmittecl to the oleL"k of the same by George E. Bovee, secretary of state, as ha"'l'ing been elected to the same. .A.ncl that a writ of injunction may also issuo, directed to Charles II. Merritt, sec- retary of the senate of the la t General A$ embly, enjoinin_g and restraining him from placing, causing, or suffering to bo placed, upon the roll of the senat-e to be 

convened on tho 9th December1 A. D. 1872, or at any time thereafter, or from 

placing, causing, or suffering to De placed, upon any liSt of members-elect to said 

last-mo:otioned senate, or from announcing, causing, or suffering to be announced, as a member elected to said last-mention eO: senate, or from recognizing, or causing, or suffering to be recognized, as a member elected to said last-mentioned senate, or from in any manner desi~ating, or cansing, or suffering to be clf'signatecl, as a mem- ber to the said last-mentioned senate, prior or during the organization thereof, any 

person whose name shall not· be transmitted to him by Georgo E. Bovee, the secre' 

tary of state, upon a. list of the nan1es of such persons as have been elected to tho 

saiu last-mentioned senate, and from in any manner acting upon any other list,• except tho one so transmitted• by the said George E. Bovee, m the organization of 

tho last-mentioned senate, ·and to disregard in said organization all oilier lists. .A.nd that a writ of injnnction may also issue directed to William Vigors, clerk of 

tho houso of representatives of tho !astGeneralAssembly, enjoining anrlrestraining him from placino-, causing, or suffering to be placed, upon tho roll of tho house of 

1·rprr!lentatives fO be convened on the 9th of December, A.. D. 1872, or at any time 

thereafter, or from placing, causing, or suffering to be placed, upon any list of mom- ben; clecte<l to saidlast-mentionednouse, or from announcing, causing1 or suffering to bo announccu, aa a member elected to said last-mentionotl house or represent..'ttin, , or from recognizing, or causing, or suffering to bo reco~ed, as a member •lcctcd to said 1'1.9t-mcntioned house ol representatives, or from in any manner des· 

ignating, or causing, or suffering to be designated, as a member to the said lastmentioned house, prior or during the organization thereof, any person whoso name f;ball not be transmitted to him by George E. Bovee, the secretary o.f state, UJ:~On a list of tho names of such persons as have been elected to tho said last-mentioned 

bouse of ropr entative.o;;, and from in any manner a<lting upon any other list, except tJ10 one so transmittecl by tho said George E. Bovee, in the organization of the lastmrntionou house of representatives, ancl to clisrogard in said organization all other 

li ts. ~ 

And that a writ of injunction also issue directed to said George E .. Bovee, enjoin- iuv and restraining him from receiving any return or returns of the election of any- State officers or of tho members of either 'branch of the General Assembly of the 

State of Louisiana, exooptinao such retunis as may be received by or filed in the 

office of him as secretary of s~te from the board of returning officers and a maJority 

of the same, composed of Henry C. Warmoth, .James Longstreet, and .Jacob Hawkins, and .John Lynch, and ·himself, and from delivering, causing, or suffering to be 

delivered, to any speaker of the house of representatives. any return, except rccei ved 

and ':fiJe<l a,s above stated, o~ any election what-ever, or from making, or causin~, or suffenng to be made, any list of names of the members elected to either branch of 

!~~~~~~d~sembly, except from anu according to returns so received or filed, as 

That a. writ of injunction also issne directed to tho said .Jack Wharton and 

Samuel Armstead, and each of the~1 enjoining and restraining them anrl each of 

them from r eceiving any returns of we elections held in the State of Lonisiana on the first Monday of ·November last past for members of tho General. Assembly or from transmitting to William Vigors, the clerk of the house of representatives; or to Charles H. Merritt, the secretary of the senate of tho last General.A.ssembly, or to any other person, any list of names which is or purports to be a list of names of 

such persons, or the name of any person who, according to any returns, shall 

have been, or shall·be stated, or cl.aimed, or assumed to have been,· elected to either 

branch of tho General Assembly, called to convene on the 9th day of December, 

A.. D. 1872, or that may be called to convene at anr future time, and from making 

any st:atei_Dent or. doing an~g calculated or. designed to furnish a. basis for the 

orgaruzation of e1therof rund branches of the Said General Assembly, or from <lelivermg or interfering, connivinrr at or aiding, or suffering any other person to delivor, to ilie sp~ker of the house o'i representatives, or any other person, any returns of 

any election whatever . . A.nd that writs of injunction may also issuo directed to the said Thomas Isabelle, 

P. S. Wiltz, .J. S. Taylor, .J. E .. .Austin~nd G. Do Feriet; also is uo against tho said 

H. C. Warmoth, .Jack 'Vharton, Frank li .. Hatch, and DurantDa Ponte, commandin a 

them and each of them to refrain and desist from pretending to act together as a boarCI 

of, returning officters or as returning officers of elections, from canvassin~ or attempting to canvass or consider any certificate, document, affidavit, return, statement of 

votes, or any paper whatsoever properly relating to said election, and from attempting to make a canvass, declare or publish any pretended deduction, calculaHon, 

statement, or proclamation based thereon, or pretended to be derived therefrom, 

in any way relating orpertainin~ t() said election, held on the 4th day of November, 

1872, or certifying to any candidate· for office at said election any certificate of 

election, or any statement of the result of said election tending to show any ri~ht 

to office iu any person growing out of ballots castatsa.id election, and from meddling 

with, altering, suppressing, falsifying, obliterating, or destroying any document, 

paper, voucher, proof, statementol votes, or certificates relating to said election. 

I hereby certify that the foregoing is.a. true and correct copy of tho complainant's 

pray r for injunction in his bill of complaint in tho cause of 'Cresar C. Antoine vs . Henry.C. Warmoth et al .. , No .. 6851 of the docket of the circuit court of the United 

States for the district of Louisiana, referred to and made a. part of the subjoined restraining order . fSEAL.l F. A. WOOLFLEY, Glerk. 

J ..U."'lJARY 3, 1873. 

:M:r. CARPENTER. I have had this injunction read so that Senators may see that it justifies alii have said about it. It was a doublefaced document; it was an injunction against the democrats, it was a?n.amlamu..s in favor of the republicans; to the democrat a sword, to 

the republicans a shield. All that a. republican partisan could tlccently have asked, even from such a judge, in organizing that Legislature, was that he should enjoin the democrats from going in, am1 

leave the republicans at liberty to go in or stay out as they plcasctl. 

Bnt having his hand in, he was determined to do thorough work, and 

by his injunction he kept the democrats out, and by his mandamus he 

put the republicans in. . [At this point the honorable Senator yielded for an executive session.] 

FRIDAY, Janua1-y 30, 1874. 

Mr. CARPENTER, (resuming:) Mr. President, when the Senate were kind enough to adjourn yesterday, I had had the Clerk read the remarkable order which was made by Judge Durell, combining both "ihe qualities of ani nj unction and amandamus, restraining the officers of the Legislature from calling one set of men and commanding them to call the names of another set of men. These orders of Judge Durell are the more censurable from the fact that Congress had provided by th~ 

thirteenth section of the enforcement act as follows : 

It shall be lawful for t.he Presid.ent of the United States to employ such part oft 

the land or naYal forces of tho Unit.ed States, or of the militia, as shall be necessary to aid in t.he execution of judicial process issued under this act. .. 

Thus conferring a power upon the President whjch is equivalent to 

making it his duty in all cases to execute the process of judicial 

courts. It may well be doubted whether in strictness these orders were regular on their face; but that is one of those questions that a ,marshal of the United States can harclly be called upon to. decide. 

The circuit court for Louisiana, liko all our circ.uit courts, is one of 

general jurisdiction: and unle s the defect of jurisdiction ·in the 

particular ca-se appeared upon tho face of the process, it was a protection to the marshal, and the Pre ident was bound to enforce it. Let me repeat what I said in discus ing this matter at the last session. I ~o not disapprove of the President's issuing orders for the enforcement of Judge Durell's orders. The President is necessarily in one place. Courts aro sitting in various place , and ma,y be sitting in 

thirty- even State at tho same moment. The Constitution makes it 

the dnty of the Pre ident to take care that the laws be faithfully execu eel. In discharging this duty he can havo no better guide 

th:m tho decisions of the judicial courts. Indeed, having no judicial power, the President has no rjght to review tho decisions of the 

judicial tribunal . It his duty to enforce all of them. The juuge 

who makes an erroneou decision is answerable for it, if it be cor- ruptly made. ~nt to say that the President may enforce one, and 

refuse to enforce another decision, is to clothe him with judicial 

power, which is denied to him by the Constitution; and when he is 

informed that the United States court in Maine, or in California, or in Florida, or in Wisconsin, has made a certain order, he can do no less in tho nature of things th::m to execute that order. So I la,y no censure whatever upon the action of the President ; none what-
1874. CONGRESSIONAL RECORD. 1047 

ever upon tho action of tho marshal; and I complain only of Judge 

Durell for the occupation of the state-house by troops. The responsibility of that act rests upon that judge, and not upon the marshal 

and not upon the President. . . . . I come now to consider another thing, wh1ch the Senator from Indi- ana relies upon as estopping the Senate in this inve~tigation, ~o. wi~, 

tho recognition of Kellogg as governor, and the LegiSlature, w mch 1s 

known as the Kellogg government, by the ~re~ide~t of the United 

States. And here it becomes necessary to distmO'msh between the 

preliminary dispatches that were sent by telegraph between persons 

in Louisiana and persons in Washington, runnmgthrough the month 

of December, 1872, and a. part of .:ranuru·y, 1873, and the sub~~qu~nt 

action of the President of the Umted States, upon the app11cat10n 

made to him by Kellogg, which I shall particula.rly mentio]l hereafter. 

Theso telegrams are a telegram from tho Attorney-General to Packa.rd, in these words: DEPARTMENT OF .JUSTICE, Decernbe1' 3, 1872. 

S. ll. PACKARD, Esq., United States Marshal, New Orleans, .Loui.riana: 

You are to enforce the decrees and manclates of the United States courts, no mat· ter by whom resisted, and General Emory will furnish you with :ill necessary 

tJ:oops for tba.t purpose. GEO. H. WILLIAMS, 

Attorney. General. 

That was several days before the order had been issued by Judge 

Dnrell to which I havo referred. 

Thou there is a dispatch from Mr. Casey to the P1·esident, found on paO'e 55 of the report. I have not tho strength, and will not take tho t~e, to read all theso dispatches; but I will refer to them with the 

pages of the report where they can be found, so that Sonator.s can examine thorn if they please .. The dispatch of Casey to the President, 

on page 55, I think I will read: NEW ORLEANS, December 6, 1872. 

President GRAli'T: 

Marshal Packard took possession of state. house ~s ~orning, at an early. honr, 

with military posse in obedience to a mandate of crrcwt conrt, to prevent illegal 

assemblage of persOns under ~e of authority of ·warmoth's returning board, in 

violation of in.i unction of circwt court. Decree of court just render~d declares Warrooth's returnin"" board illegal, and orde~ the retlll'll;S of tbe election to be forth· 

with vla.ced befure the legal board. This uoar:d will prob~bly ~on dec!are the 

result of the election of officers of State and Legislature, which will meet m state. house with protection of court. Tho decree was sweeping in its provisionsThere never was a. more appro1)riate comment than that. The de- cree. swept awa.y a Le~islature, it swept away the organization of one of tho members of this Union. 

The decree was sweeping in its ,.Provisions, and if enforced will save the republi· caa nwJority, and give Lottisiana, a republican L egisT.a,ture a?ld State govr.rnment, and 

check Warmoth in his usnrJ'ations. Warmoth's democratic supporters are becom· 

ing disgusted with him, an charging that his usurpations are ~:ffi. ~T'sEY~e. 

Then follows a telcgr::un from Packard to the Attorney-General, 

found on page 55 of the ;-eport ; another from Packard to tho Attorney-Geuera.l, on the sa. me page; another from Packard to the AttorneyGenera.!, on page 56; another from Packard, on the same page; an- other from Pinchback to tho President, page 57 of tho report, which 

I will read: NEW ORLEANS, DecemJJer 9, 1872. 

President GRANT: 

Having taken the oath of office and being in the possession of the gubernatorial office, it devolves upon me to trr<Te the necessity of a favorable consideration of the requet:~t of the General .As embfy as conveyed in the concurrent resolution of this 

day telegraphed to you requesting the protection of the United States Government. Be please(l to send the necessary orders to General Emory. This seems to me a 

necessary measure of precaution, although all is quiet hEire. 

P. B.S. PlNCHll.ACK, 

Lieutenant-Governor, Acting Governor of Loui.;iana. 

No "insurrection," no ''domestic violence;" everything was quiet, 

but, as a. precaution, tho demaml was ma.de for tho intervention of 

the General Government. · On page 57 is the communication from Mr. Pinchback, which he 

refers to in the telegram just read: 

NEW ORLEANS, December 9, 1872. 

We have the honor to transmit to your excellency tho following concnrrent res· olution of both houses of tho General .Assembly, ancl to request an early reply: 

"Whereas the General .Assembly is now convened, in compliance with the call 

of the governor, and certain evil.dlsposed ..Persons are reported to bo forming com· binations to disturb the public peace, defy the lawful authority, and the State is 

threatened with violence: Therefore, 

"Be it resolved by the senate andhottse of representatives o.f the State of Loui-siana in 

General Assembly convened, That the President of the United Sta.t..c-s ue requested to afford the protection guarantcedoachState by tho Constitution of the United States, 

when threatened with rlome tic violence, an(l that tho prcsidina officers of the General.Assembly transmit this resolution immediately, by telegraph or otherwise, to the President of the United States. ".Adopt~d in General .Assembly convened this 9th day of December, .A. D. 1872." 

' · P. B. S. PINCHBA.CK, 

Lieutenant-Governor, and President of the Senate. 

CHA.S. W. LOWELL, 

Speaker of th.c House of Representatives. 

I may say that on receiving that communication from Governor 

Pinch back the President himself apparently paid no attention. to it; 

and her~ I wish to call the attention of the Senator from Indiana 

spccia1ly to this point. I maintain that thero is nothing whatever 

hero to show that the President of the United States has ever recog- nized the Kellogg Legislature. Tho Kellog"" Legislature sent to the 

President these- resolutions, declaring, not that insurrection against 

the State existed, but that dontestic violence ·was tlweatened; .ancl there 

is a subsequent telegram from the governor to the President asking 

action, althou~h he says '' everythln!J is quiet;" that is, there is no insurrection, there 1s no domestic violence ; a.nd I maintain that in ali this 

correspondence there is nothing to show that the President has ever recogni1:ed any Legislature whatever in that State; because the President did not act, in the only way he is a.uthorized to act, upon their 

call. 

The two telegrams from Pinchba.ck to the President, and one to the 

Attorney-General, are found on pages 57 and 58; a.nother, from Casey 

to the President, on page 58; another, from Kellogg to the AttorneyGeneral, on page 58; another, from ·Casey to the President, on· page 

59; one from Casey to the President, again, on page 59; from the Attorney-General to Governor Pinchba.ck, on page 59; a.nd this last I will re~: . DEPARTMID\'T OF .JUSTICE, December 12, 1872. .Acting GoT"ernor PINCII13ACK, - New Orleans, Louisiana: 

Let it be understood that you are recognized by the President as the lawful e:xecu· tivo of Louisiana, aml that the body a sembled at Mechanics' Institute is the lawful 

Legislature of the State, and it is suggested that you make proclamation to that 

effect, and also tha.t :illnecossaryassist.'lncewill be given to you and the Legislature herein recognized to protect the State from disorder and violence. 

GEO. H. WI.LLI.A.MS, 

Attorney.General. 

Mr. MORTON. Was that by anthority of the President T 

:Mr. CAR.PENTER. That you willhavetoasktheAttorney-GonornJ.. 

Mr. MORTON. Does the Senator deny that it was by his a.uthority T 

Mr. CARPENTER. I know nothing about it. 

Mr. lORTON. The Senator just &aid thatthe President had never recognized tho Legislature; and there is an express recognition of 

tho body sitting a.t Mechanics' Institute. 

:Mr. CARPENTER. I know that the Senator from Indiana regarded 

this as a recognition. I knew that when he came to reply to me ho 

would read it. For that rea-son I read it myself, and I propo e to 

comment upon it. !maintain that that is no recognition of the Legislature of that State which can have the slightest legal effect upon 

anybody. And now let uss~e a.bout that question. Let us see under 

what circumstances the President can interfere in the affairs of a State, and how he :ls to interfere. The Constitution provides in these 

words: · . 

The United States shall guarantee to every State in this Union a republican form 

of go\ernmcnt, and shall protect each of them against invasion, and on application 

of the Legislatme1 or of the executive (when the Legislature cannot be convened) 

against domestic molence. 

This does not authorize the President to• do anything. It grants 

a.uthority to the United States. The last clause of the legislative ar- ticle empowers CongressTo make all laws which shall be necessary and proper for carrying into execu. tion tho foregoing powers, and :ill the powers vested by this Constitution in the 

Governm-ent of the United States- · 

That is the very power which we a.re now speaking ofor in any department or officer thereof. 

You will observe, Mr. President, tha.t the langua.ge of the Constitution makes it the duty of the Unit.ed Sta.tes to guarantee any State 

against domestic violence. That is to be provided for by law which 

hall regulate the time, mode, and manner of enforcing tha.t guarantee. 

When you turn to see whn.t Congress has done under that provision, 

you find that Congress has not exhausted the power that is conferred 

by this clause of the Constitution. This phrase, "guarantee a Stat 

against domestic violence," may be broad enough to cover every case of tumul·t and riot and disorder that may happen in a State. I do 

not say that it covers the whole field, but it may do so. " Domestic 

violence" is a very general and very broad phrase, and if Congre s in a particular instance should see fit to legislate for the purpose of 

suppressing riots in a. State, I am not certain that it would not have 

the power, under this cla.use ofthe Constitution, topassalawforthat 

purpose; but Congress hasnotpa sed such a law. But let us see what 

Congress has done. The first act upon the subject wa tha.t of 1792, 

to be found in 1 Statutes at La.rge, 264, which by its terms was to 

expire in two years, and at the end of the then next session of Congress. That act provided as follows : 

In case of an insttr·recti<m. in any State against the government thereof, it shall be 

lawful for the President of the United States, on application, &c., to c:illforth such 

number of the militia., &c. . 

Not "in case of domestic violence," leaving the President to judge 

whether it was a proper ca e to interfere or not, but it mu t be tha.t 

kind of domestic violence which amounts to a,n insurrection against 

the government of the State. Anything short of tha.t does not au- thorize the President to interfere a.t all. 

Mark how carefully Congress has defined the power conferred upon 

the President. There is nothing in all the powers conferred npon 

this Government so delica.te and so difficult of proper exercise as those 

powers which authorize us to meddle in the affairs of a State. There 

we come in conflict with the prejudice in fuvor of State rights, deeJ?lY 

imbedded in American thought; we come in contact with the pr1cle 

and the vanity of States; and of all our powers none are so likely to 

involve us in trouble as thos which bring us into contact with the 

affairs of a State. Con~ess ha recognized this fact, and has sought 

to avoid its difficulty. tt has not authorized the President to call out 

/ 
1048 CONG RESSION A~. RECORD. JANUARY 30~ 

troops in case of domestic violence, but only in case of one kind of 

domestic violence, to wit, that which amounts to insurrection in any 

State against the government thereof. Then, by section 3 of this 

act, it is pwvi.ded that before the President shall call forth the militia, 

he shall issue a proclrunation commanding the insurgents to disperse 

within a time to be named by him. 

On the 28th of February, 1795, before this act had expired by its 

terms, being in the session of Congress which followed the expiration 

of two years from the passage of the act, the act was repealed, and a new act was passed upon the same subject, which is still in force, and 

under which the interference was made in the Rhode Island case, and 

under which it was pretended to be made in this Louisiana case. It 

is just as precise as the other. Its provision isIn case of an insurrection in any_Stare against the government thereof, &c.-

following precisely the language of the former act. Then, again, in 

section 3, it is provided that the President shaH immediately issue a proclamation commanding the insllrgents to disperse, &c. 

The next, and, so far as I know, the only other act applicable to 

this subject, is the act of 1\Iarch 3, 1807, to be found in 2 Statutes at 

Large, page 443. The acto£ February28, 1795, will be found in Statutes at Large, page 424. 

1\fr. 1\IORTON. I should · like to call the attention of the Senator 

to the fact that he ha-s overlooked the second section of the act of 

1795 a.lto(l"ether. He confines the case in which the President is 

authorizea to interfere to a case of insurrection. That is provided for 

in the :Jiret section. The second section provides: 

Whenever the laws of the United States shall beopposedortheexecution thereof 

obstructed in any Stare by combinations too powerful to be suppressed by the ordinary course of judicial proceedin~s, or by the powers vested in the marshi!J.s by this 

act, it shall be lawful for the PreSident of the United States to call forth themilitilt, 

&c. 

Mr. CARPENTER. What has that to do with this question? 

1\ir. MORTON. The Senator overlooked it; that is all. 

Mr. CARPENTER. No; I did not overloo"k it. 

1\fr. MORTON. You did not mention it. 

Mr. CARPENTER. I did not mention it because it had no more to 

do with the matter I am discussing, than a chapter from the Koran. 

There ar~ two cases provided for by the act. One is the case we are speaking about, authorizing intervention in the a,ffairs of a State; 

the other is a case entirely within the Government of the United 

States, where the Pre~:~ident is required to execute our laws without 

application from any State. If our laws are resisted in New York, or in Florida, or anywhere else, he must enforce them. The case provided for by the first section and the case we are discussing is the case of an insurrection i..I:}Jt State, where the State applies to the President to suppress such insurrection. That second section has nothing 

to do with what I am discussing. 

Here let me call particular attention to the language of the act of 

Maroh 3, 1807, because an ambiguity in expression led the person who 

drew this proclamation-! suppose, of course, it was not drawn by 

the President--into an error, I think, as to the effect of the act. The 

act is as follows. I will first read it, without note or comment: 

That in all cases of in..<~urrection or obstruction to the laws, either of the United 

States, or of any individual State or Territory, where it is lawful for the President 

of the United States w call forth the militia for the purpose of su ppres~~ such insurrection, or of causing the laws to be duly executed, it shall be lawitu for him to employ, for the same purpose, such part of the land or naval force of the United 

States aa shall be judged necessary, having first observed all the prerequisites of 

the law in that respect: 

The first two acts which I have read only authorized the-President 

to call out the militia; he could not use the Army or the Navy. This 

act was passed only for the purpose of enabling him to use the Army 

and Navy instead of callin~ out the militia; but it was evidently 

intended by this act to provide for the two cases, the one of intervention in the affairs of a State when called on by the State for that 

purpose, and the power of executing the laws of Congress, which it 

is the duty of the President to do without application from any State. 

And in coupling the two ca es: the sentences are so constructed that 

at first reading it might seem to imply that the President might use the Army and Navy whenever the laws of an individual State were obstructed; but a reading of the whole act shows that that is not its 

true construction. Let me read it again: 

That in all cases of insurrection or obstruction to the laws, either of the United 

States, or of any individual State or TerritoryIf the descriptjon of occa-aions for using-the Army and Navy had 

sto()pped here, and the enacting clause commenced at that point, "it 

shall be lawful for him to employ the .Army and Navy," &c., it would 

have been clear that Congress intended to confer authority to use the 

.Army and Navy to enforce the laws of a State; but that i.s not the 

description. Let me read that whole description now: 

That in all cases of insurrection or obstruction to the laws,. either of the Uhlted 

States, or of any individual State or Territory, where it is lawful for the P-resident 

of the United States to call forth the militiaWhat does that mean Y It relates back to the act of 1795, and says that in those cases of insurrection or obstruction of the laws where 

the President by that act is authorized to call out the militia, he may use the Army and Navy. I maintain that ou a·careful reading of this 

law it is perfectly clear that the President has no right to call forth 

the militia or to employ the Army and Navy for the mere purpose of 

executing the laws of a State. 

Mr. MORTO... . Did the Senator refer to the fourth section of the 

act of 1795 '? 

:Mr. CARPENTER. I did not; but I will stop and let you do it. 

Mr. MORTON. I think the Senator is under a mistake. 

fr. CARPENTER. Well, what is it f · Mr. MORTON. That section reads: 

In all cases of insurroction or obstruction to the lawsPutting them togethereither of tho Uriitcd States, or of any individual State or Territory, where it is 

lawful for the Prcsidont of tbo United States to call forth the militia. for the pur- pose of suppressing Ruch insurrection, it shall be lJowful for him to employ for such 

purpose such part of t.be land or na-val forces, &c. 

That is the rc_gnlar Army. I hiuk that covers it. 

Mr. CARPENTER. That js a good illustration of the value of the;e 

interruptions by the Senato()r from Indiana. I have read that act three 

times, and have been commenting upon it for ten minutes. The Sen-· 

a..t_or fro:J?l Ind~ana takes up another bo~k-I suppose he has Brightly's 

Digest, m ~hiCh the several acts relatmg to any one subject are ar- range4 by sections-and reads the identical act t.hat I Tead and have 

been commenting upon; and he says I have utterly overlooked that 

act, and it upsets everything I have said. 

Mr. MORTON. The Senator said himself he had not read it, but 

would let me do it. 

Mr. CARPENTER. It is true that when the Senator from Indiana 

asked me if I had not overlooked the fourth section of the act of 

1705 I did not know but that there might be a mare's nest I had not 

found; but I knew if there was the Senator from Indiana would cer- tainly be deep in it, and well qualified to point out its dimensions 

and locality. [Laughter.] I therefore stopped to hear what it was; 

but a-scertained that instead of ueing the fourth section of the act of 

1795, as the Senator supposed, it is an· entire act, being the act of 

1807, 2 Statutes at Large, 443, which I read in full, and have read 

three times in full, and have commented upon at length. The Senator now says that I have overlooked altogether the statute I am com- menting upon. [Laughter.] I desire to say to the Senator that I 

take these interruptions very kindly, and I hope he will keep track of 

me, and as often as I overlook anything will call my attention to it. 

Mr. MORTON. I understood the Senator to say that the President 

could not use the land and naval forces for that purpose, and I simply 

wanted to call his attention to the law. If the Senator is disposed 

to make a joke of it, I cannot help it; I have not the slightest objection to it. 

Mr. CARPENTER. Well, 1\ir. President, I am not such a wit as to 

perpetrate such a joke a-a the Senator from Indiana ha just made. 

Mr. MORTON. The Senator's wit is more dangerous than his arguments generally. 

:Mr. CARPENTER. I had referred to the statute; I had referred to 

the page where it was to be found; I had read it three times; I was then proceeding and trying to satisfy the Senator from Indiana that it 

did not authorize the President to call out the troops to execute the 

laws of the State. The Senator from Indiana asked leave to interrupt me, and said I had overlooked the act I was commenting upon, 

and that it proved exactlywhn..tl am trying to prove it does not. That 

is a.U a perfectly legitimate argument for the Senator from Indiana to 

make. It is just as legitimate for me to make the argument that it 

does not give any euch power, a,nd that I was trying to do. The onlv 

difficulty about this matter is that it is impossible under the rule of 

the Senate for me to be enforcing one construction of the statute ancl 

the Senator from Indiana to be enforcing· exactly the opposite con- struction at the same moment. . Let me turn again to this act. I say that for the whole act taken 

together it is manifest that it :was not designed to add to the occasions 

upon which the President may employ force, but to authorize him to use the .Army and Navy, instead of the militia, in cases already provided 

for. It refers in plain term to two cases- one of insurrection against 

the government of a State where he was authorized to call out the 

militia; another of obstruction of the laws of the United States; and 

in providing for both cases in one section, an ambiguity was created 

in one parl of the act, which is, however, entirely removed by the 

following additional descriptive phrase: "whe1·e it is la.wjltl j01· the 

Pt·esident of Ow United States t-Q call fm·th the 1nilitia," &c.; that is to 

say, tho act, taken entire, says that in both cases-the case of insurrection against a State, and the case of obstructing the laws of the 

United States; that is, in the cases where by law tho President was then authorized to call out the militia-he might use the .Army and 

Navy instead of the militia; and therefore, under this act of 1807, in 

order to ascertain whether the President is entitled in a given instance 

to use the .Army and Navy, you must go b::t{!k to the act of 17!>5 and 

a-scertain whether it is a case within the provisions of that act, be- cause unless it be it is not a ·case where it is lawful for the President 

of the United States to call forth the militia. All this act was intended to do was to authorize the use of the Army and Navy, instead 

of the more expensive force of the militia; but in term_s t.he use of the 

Army and Navy is confined to the ca-ses where by law the President- wa-s then authorized to call out the militia. · The :first case arising tmder the act of 1795, as amended by the act 

of 1807, was the Rhode Island rebellion. That case fell precisely not 

only within the broad power confened by the Constitution guaranteeing a State against "amnestic violence," but within the much more restricted P,?Wer conferred by Congress upon the President, to wit, a 
187.4. CONGRESSIONAL RECORD. 1049 

case of in urrection in any State against the government thereof. 

What were the facts of that case f The old charter government 

which had been in existence from the Revolution was going quietly on exercising its accustomed power, represented in the Senate, when some individuals took it into their heads to establish a new government. There was no warrant of law for their proceeding. The government of Rhode Island, which wa,s one of the original members of 

the Union, one of the States which ratified our Constitution, had 

given no authority to anybody to establish another government. But 

voluntarily certain men called caucuses instead of legal conventionB, 

and in the several towns ana counties of that State they caused delegat es to be elected to a convention which wa,s nothing but a caucus, 

and that caucus framed a conBtitution and invited the people of 

Rhode Island to adopt the conBtitution th y had framed at an election which they ordered; and subsequent.ly they declared that the 

people of that State had adopted the new conBtitution; and then an election was held for officei"s under the new conBtitution, and Mr. 

Dorr was elected governor, a ·they said, and Mr. Dorr pmceeded to 

make 'the fact manifest by a suming the duties of governor of the 

State under the new constitution. That was a clear case of insurrection against the State as soon as :Mr. Dorr rallied a military force to 

put the new ~overnment into operation, because that was an attempt 

to overturn the legal government and set another in its place. 

The Legislature of the legal government of Rhode Island represented to the President, not that there was domestic violence, but that 

there was insurrection in that State against the constituted authorities of the State, and called upon him to interfere. Subsequent to 

that, the governor himself wrote several communicationB of this kind, 

and the President did int-erfere; that is to say, he issued his proclamation, as the law requires that he shall in such a c.ase, commanding 

the insurgents in arms against the charter government to disperse and 

go to their homes within so many days. Tha.t is what the President 

did in that ca,se ; and for this I refer the Senator who wishes to exam- ine it to-the document which was published by the House of Representatives upon the Rhode IsJand troubles, at page 673, and the President's proclamation, printed in the same book, at page 684, with all 

the correspondence which took place upon the subject, showing how 

carefully President Tyler observed his duty, and how cautiously he 

proceeded, sending out his agents to examine; and then the governor, 

having forgotten that the Legislature had convened, and standing on his former request, the President writes to inform him that he has 

fallen into an error, and that, the Legislature being in session, they 

must make the application-all-showing what care the President took 

to keep within the provisions of the Constitution and a~t. · That was the only inBtance in which this power bad been exercised 

until the present ca e. Now I wantto call your attention, Mr. President, to the ca e upon which, in t.he summer of 1873, the President 

issued :1 proclamation. But before coming to that let me say that 

until the 15th of Janua.ry, 1873, when :Mr. Pinehback was elected, 

there had been no recognition by the President of governor or Legislature, unless the telegram of December 12, 1872, from tbe AttorneyGeneral to Acting Governor Pinch back can be so regn.rded; and that 

I deny. The Senator from Indian~. argueR that we are estopped from 

inquiring into the legality of the Kellogg Legislature for various rea- sons, one of which is that the President has recognized that Legislature which be claims to result from the telegram last mentioned. A~udge on the ·bench h.'ts jurisdiction, under certain circumstances, 

to decide a question of title between my friend from New York and 

myself to a farm ; but suppo e he hears a rumor that my friend anu 

myself are contending about that matter, and he directs his clerk to · teleg~·aph to the Senator from New York, "My dear Senator, let it be 

understood that I decide in favor of your right to this farm and that 

the pertinacious and obstreperous Senator from Wisconsin had better 

hide his head ;" would that telegram preclude my rights or estop me from litigating the question f 

Under the carefully worded provisions of the act, the President must. be informed by application from the State authorities that an insurrection exists against such State government, ancl then he must issue a proclamation to the insru:gents which gives notice to all the world 

of· the action he is about to take; and why does that amount to a recognition Y Simply because the President llaving been called upon, 

and a proper ca-se made, it becomes his duty to put down tho e who are in arms against the legal government. Therefore the det-ermination on his part of· which is the legal government is a determination 

of a matter as to which he ha-s jurisdiction to decide, and differs from 

the telegram sent by the Attorney-General to Governor Pinch back, as a judgment of a judge in a case properly before him between my friend 

from New York and myself would differ from a t-elegram sent by the 

judge to my friend, as before supposed; and I maintain that in no other way than by the proceedings prescribed by the a~t can the 

President effectually recognize n.ny State government. 

Will the Senator from Indiana seriously maintain that. the President can telegraph to different States, "I recoo-nize yon as governor 

of such a State," and "I recognize you as the l::egislature of such a State," with no case made calling upon him to n~t under the lawY 

Have we como to that in this cotmtry No, sir; we have not. And 

I maintain that when a. proper case is made, the President can proceed only in pursuance of the act, and can in no other way accomplish a 1·ecognition of a State government which would bind anybody. 

The President of the United States is charged with a most delicate 

and important duty. When an application is made to him in proper form, and showing t be proper case; he must march with the Army and 

Navy and restore order; but be must have the proper ca-se before he 

does so. 

Now let us see what was the case as made byGDvernor Kellogg. I 

sent the other clay to the Attorney-General for a copy of the commu- nication from Louisiana upon which the President issued his proclamation of .May 23, 1873. It is in the following words: 

STATE OF LoUISIANA, EXECUTIVE DEP.AR~, 

New Orleans, May 13,1873. 

Srn: Domestic violence existing in several parishes of this State, which the State 

authorities are unable to suppress without great expense and danger of bloodshed, 

and the Le&l-slatnre not boing in session, and it being impossible to con>ene t.he 

Legislature m time to meet the emergency, I respectfully make application, under 

the fourth seotion of article 4 of the Constitution of the United States, for a snf· 

ficient military force of the United States Government to enable the State authorities to suppress insUITectiou and domestic violence. 

Very respectfully, your obedient servant, 

WILLIAM P. KELLOGG1 Governor of Louisw.na. 

To his Excellency U. S. GRANT, President United States. 

The word "insurrection" appears but once in this communication, 

and that not in the statement of fa{}ts, but in the prayer for relief. He 

states the· ca,so as follows : 

Domestic violence existing in several parishes of this State, which the State authorities are nnable to suppress without great expense and danger of bloodshed. · 

I turn to the proclamation which was issued by the President, and 

which I think shows conclusively that whoever drafted it had never seen Mr. Kellogg's application. The Senator from Indiana read this 

proclamation, and I read it from the report of his speech. This is his 

estoppel on the Senate to inquire w bether Pinch back was elected by a Legislature or by a town meeting : • · 

Whereas under the pretense that William P. Kellogg, the present executive of 

Louisiana, and the officers associated with him in the State administration, wore not duly elected, certain turbulent and disorderly persons ha>e combinecl together with force and arms, to resist the laws and constituted authorities of said State; and 

whereas it has bee:t duly certified by the proper local authorities, and judicially determined by the inferior and supreme courts of said State that said officers art~ 

entitled to hold their offices respectively, and to execute and discharge the functions 

thereofAll of which I shall show is a mistakeand whereas Congress, at its late se sian~ upon a due consideration of the subject, tacitly recognized the said executive ana his associates then, as now, in office, by refnsmg to take any action with respect thereto--

The Senator from Ohio [Mr. THururAN] aml his associates voted 

against a new election, because they thought McEnery was the gov- ernor and he and his legislature formed the government of that State ; 

others voted the same way because they thought Kellogg was the 

governor; and the bill wa,s defeated by the joint action of the democratic party, holding that McEnery was elected, and a portion of the 

republicans, who were of the opinion that Mr. Kellogg was elected. 

The bill passed, as you know, in the late hours of the morning. 

Mr. MORTON. It did not pass; it died. 

lli. CARPENTER. Yes, it passed away; and therefore we have had 

all these difficulties. We have had this bogus government standing now nearly a year, pa sing laws under which men have been acting, 

under which rights are supposed to have been vested. We have had 

bloodshed, and tumult, and riot, all, in my judgment, the legitimate 

fruit of the non-a~tion of Congress when it ought to have acted, and 

when, in my judgment, it would have acted but for the circumstances 

under which the bill was brought before the Senate. It came here in 

the very la~t days of the session, when all the accumulation of busi- ness for six months was crowding upon us, and when but a short time 

could be devoted to any one subject, and we sat here aJl night long 

to consider this bill. My belief is that the bill could have been passed 

at midnight, at one o'clock, at two o'clock; but by three some of 

the oldest Sena.tors, and one or two who were in poor health, had left, 

could not remain longer; and so it ran on until four o'clock, when the 

vote would have been decidedly against the bill. I recollect that at 

that time some debate was started of a political nature, which drew, 

I think, the late Senator from California, Mr. Ca serly, to his feet; 

and that delayed a vote until we could send for Senators; and when 

the count came it turned out that there wa.s a majority of two agairist 

pas ing the bill. 

Mr. MORTON. That was the trouble exactly. 

Mr. CARPENTER. That was the trouble; and let me say to the 

Senator from Indiana it was trouble indeed. It has been trouble to 

that State; it is trouble to this country; it is a. cloud upon the fair name of our nation. 

But let me return to the proclamation: 

And whereas it is provided in the Constitution of the United States that the United 

States shall protect every State in this Union, on application of the Legislature, or of the executive when the Le~lature cannot be convened, against domestic violence; and whereas it is proviaed in the laws of the United States that in all cases of insurrection in any State, or of obstruction to the laws thereof, it shall be lawful 

for the President of the Unitoo St-ates, on application of the Legislature of such 

State, or of the execu.tive when the Legislature cannot be convened, to call forth 

the militia of any other Stato or States, or to employ such part of the land ancl naval 

forces as shall be judged nooessax:y for the purpose of suppressing such insurrection, or causing the laws to be duly executed. 

This recital shows that whoever drafted this proclamation had mistaken the effect of the act of 1807, and concluded that it authorized 

the President to enforce State laws, which I hold not to be the ca:se, 
~: ; ;. 

i 

CONGRESSIONAL RECORD. J.ANU.ARY 30, 

unless 9f.e obstruction of the laws of the State amounts t.o an insurrection against the government of he State. I will not take time 

fu:fther to consider the recitals of the proclamation. I have read 

onough to show their incorrectness and insufficiency to justify Federal 

interference. 

Mr. MORTON. Do I understand the Senator to say that that proclamation was issued in violation of law f Is that his pointY 

Mr. CARPENTER. Well, Mr. President, if I cannot make my points 

I am certain the Senator from Indiana cannot make them for me, for 

he does not understand what I am trying to do half as well as I do 

myself. If he thinks I am making a very weak speech on this subjoct it need not distress him at all; he can enjoy that fact; and if I am not making my points he certainly does not want to help me make 

them. If I was conscious that I was failing to establish any point 

here I certainly would not go to that Senator for help about it. Mr. MORTON. I asked a very plain question. :Mr. CARPENTER. What was the question f 

Mr. MORTON. Does the Senator insist that that proclamation was issued in violation of law Y I want an answer to that question. 

Mr. CARPENTER. I understaml perfectly woll the motive of 

putting that question, and I am just as free to answer it as I am to 

toll the truth about anything else. I do not say it was i. sued in viohLtion of any act, because no act forbids it to be issnod. I say it was issued without any authority of law. There was no case made before 

the President which authm'ized him to interfere. Nothin~wasshown 

to himestablishingthefact that therewasaninsurrectionm thatStato 

against the government of the State. The ca e made is " dome:Jt-ic 

violence." The President does not know :tnything about domestic 

violence. That is not a call that brings him to his feet. That might 

bring Congress into action; there might simply be n, riot thero, or other disturbance, not directed ~gainst the State government, and unuer the power which the Constitution confers upon us, perhaps we could order the A:::rmy there to suppress it. I do not say whether we could or could not, but I do sa.y that the President conld not. He 

must h11>ve a ca-se, not of domestic violence, bnt a case of insurrection 

in a State against the government thereof; and I say no such case was shown. Therefore I say there was no authority for issuing that proclamation. No one questions that the proclamation was issued in good faith. 

No one questions that in the attitude in which affairs were left by 

Congress omitting to act upon the subject, the proclamation did good. 

I ]Jave no doubt that issuing the proclamation did stay t.ho effusion 

of blood in that State. I have no doubt tha,t but for that procl:.mation theso factions would have fought it out among themEelves and settled it one way or the other, to the shame of om· civiliza,tion; and 

I do not regret th:tt the Pre ident took the responsibility of issuing 

that proclamation. But I a,m discussing here its technical validity 

and effect. The Senator from Indiana pleads, as an estoppel to the 

right of the Senate to inquire into the fact, that the Pr&ident, in a ca: e made bG:fore him, has determined that Mr. Kellogg and his legis- l:tture constitute the government of that State. Now, I answer in 

the first place on t he question of fact, that he never has recognized 

tho Legislature of that State. That t elegram from the AttorneyGeneral I throw out of the case as worthy of. no consideration what- evor. In tho proclamation nothing is said about the Legislature. 

The President 11aicl no attention to the Legislature when they called 

upon him. The act of the Pre. ident was based on this application 

made by ~Ir. Kellogg as governor of the St.ate, and all 1.hat can be 

claimed on the question of fact is, that the President recognized the ~overnor when he recognized his ant bority to ma,ke this application; 

Lmt standing horo t echnically, answering the Senator's technical plea 

of estoppel by w hkh he proposes ill prevent our inquiring into the 

fact I meet him wit h the technicality pertaining to such a plea, and 

I ay that, standing upon the strict letter of the law, there was no authority for that proclamat ion. It therefore has no validity as an est oppel. 

There is another matter worthy of consideration at this point. The 

Pre idont of tho United States, in the closing days of the last session, 

sent us a message laying the respon&1.bility of this business upon our shoulders, and t elling us what he had clone, and sa.ying that if Congre s did not act in the premises he would be compelled to uphold tho 

Kellogg government. The President acted in perfect good faith to 

Congress. Congress failed to pass any act. 

0, :Mr. President, I just begin to see, I think, the drift of the Sen- ator's interruptions. The truth is, that while I am not a very good 

lawyer, I am no politician at all; and, being engaged here in the discussion of a dry legal q nestion, it just occm'B to me that the Senator 

from Indiana is lying in wait for roo in the forum of politics. What 

in a strict legal sense may be the effect of tho proclamation as an estoppel upon tho Senate is one thing, and what may bo said in popular speech about the propriety or impropriety of the President's course is a, very different question. The Senator has le taste for tlio du ty 

paths of professional discussion than for the greener fields and sunnier 

skies of the domain of politics; and he is apparently laborin:> to have 

it appear that I am abusing the President. But, sir, in this he will 

fail. I claim t o be a true friend of the President; and I am his friend 

and admirer for the reason, among others, that he not only tolerate 

but desir s t ho fullest examination of his official acts, and does not exvcct his fri ends to approve what they think erroneous. It is one thing to say that Kellogg's letter did not make a case which could 

justify the interference of the President under the act of 1795, aml 

quite another to say that furnishing troops to execute the mandates 

of the court was unjustifiable. 

If I were on the stump and some democrat were abusing the President of the United States, the defense would be easy. The Presi<lcnt 

of the United States being compelled by tho Constitution to execute 

the laws, and ascertaining that the Federal courts there had made a certain decision and issued a certain order the validity of which he 

had no right to que tion, properly enough stationed troops to exe- cute it. All that he actually did may be <Jefended upon that ground. Indeed, the issuing of this proclamation harmed no one. All tho 

troops that are in Louisiana to-day were there before the proclamn.-

tion issued. They were there as a posse to enforce the decrees of the 

court, and they were properly there for t.hat purpo e. They merely 

executed the decrees of the comii, and that is the defense of the Pn sident politically. But that does not enable th(;\ Senator from 

Indiana to est01) the Senate on this inquiry a to whether :Mr. Pinchback was elected by a Legi lature or not. The Senator from Indiana 

does not seek to rest the defense of the President upon the true 

ground, but seeks to interpose a technicality, and says that, because the 

President has issued a proclamation, our mouths areclo ed; and while I am discussing this legal question he aims to give the discussion a political direction, and rai e a partisan clamor around my ears. But I 

trust that the Senate will distinO"uish between that kind of justification which a generous people ;fu always accord a faithful and honest Pre ident for acts well in~ndecl though not within the letter of 

the law! and that technical justification which would bo held valid 

in a comii of law if the officers acting under his orders were sued for 

trespass. · 

But let us dwell a moment upon this subject, because it is an im 

portant one, and, from a remark or two which has fallen from the 

Senator while I have had the floor, I fear that he , ncl I do not think 

entirely alike about it. Mr. MORTON. This is trifling. 

Mr. CARPENTER. If I should speak forever I could not satisfy 

the Senator on this Louisiana question. I have no hope of ever being 

able to do eo. He says the subject is a very trifling one. 1\Ir. MORTON. No; I said from the character of your remarks it 

must be a very trifling subject. 1\Ir. CARPENTER. Therefore my remarks are very trifling! Well, 

they are sufficient for my purpose; and I announced in the out et 

that it was not my pm-pose to make a speech; I ha>e no ambition in 

that direction at all; but I will try ta make as many Senators as will 

listen to me understand, in the first place, just what the facts of this case are, and second, that the Senator from Indiana haa a theory about 

it that is entirely unsound. 

Now let us see what there is in this doctrine of our beinO' estopped 

to inquire into the status of that Legislature which elected Mr. Pinchback. The Senator says that because the President issued this proclamation recognizing that Legislature -we are precluded from this . inquiry. In the first place, one complete answer is that the Constitution of the United States provides that each Honse shall be the exclusive judge of the elections, returns, and qualifications of its own members. Neither House, nor both, can abdica,tethat power. The Constitution vests it in this body. No power on earth can divest it. No man will dispute that in determining upon the election of a Senator we must inquire as to two things : First. Was the body of men whicn 

pretended to elect the Legislature the law-making power of the Stato Y 

Second. Did that body in fact choose' We cannot judge of the election of a Senator witJlout determining both of these questions. The 

Constitution having laid that duty upon us, if the acts to which I 

have referred of 1795 and 1807 have the effect which is claimed for 

them by the Senator from Indiana, and have stripped us of the power 

of inquiring into that fact, then they are unconstitutional; because no act of Congress can ta.ke from ns the power which the Constitution in express words vests in us. But, in the next· place, conceding 

that the acts ru·e constitutionaJ, which they undoubtedly are when 

properly construed, such results would not follow, because in this case there has been no decision of the President upon the subject which can estop our inquiring into it. 

The Senator from Ind!ana has referred at great length to the decision of Luther vs. Borden. That ca-se will alwa.ys be a subject of dispute. Before reading the passages of the opinion which the Sena,tor 

relies upon, I wish to read :1 few words from Chief Justice 1\farsh:tll. In the trial of Aaron Burr, when the decision in Bollman and Swart- wont's ca e was handed up by the bar all(l was claimed to conflict with 

what the Chief Justice was holc.ling in the case at bar, tho Chief Jus- tice disposed of it with this remark : · 

Every opinion, to be correctly understood, ought to be consirlored with a. view to tho caso in which it was delivered. In tho caso of tho United State ~ against noll- man and Swartwout, ther was no evidence that even two men bad ver met for 

the ;I.Jurposo of executing tho plan in which those personswero charged with having 

~:~lli~~~a!tC:~~ [e~~r~~!i~~e~~;~rc~~ ~~:;t d~cT:l~a tlbat ~c<i!=~ ~ The court might, indeed, have defined the species of assembiage which would 

amoimt to levying of war; but ns this opinion was not a treatise on treason, but a decision of a. particularcase, expressions of doubtful import should be construeuin reference to tho ca o itself; and the mere omission tost.ate that n. particular circum. stance was necessary to the consummation of tho crime ought not to ho construed 

into a declaration that tho circumstance was unimportant. General xpre sions ou~ht not to be considered ns overruling settled principles without a direct decla· 

ra.tion to that effect. (BuiT's Trial, 1807, Robertson, volume 2, page 415.) 
1874 . CONGRESSIONAL RECORD. 1051 

.tet ns·turn for a moment to the case of Luther vs. Borden. In the 

:first place, it was an action of trespass quare clausum, j1·egit. The defendant pleaded thn.t he was in the employment of the government 

of Rhode Island as a soldier, and that the breaking into the plaintiff's 

house was by direction of his superior officer, the State being nn<ler 

mn.rtial law in consequence of a rebellion. To this it was replied 

that this pretended government was no government, &c., and that 

made the issue in the case. It cn.me before the Supreme Court from 

tho circuit court of the United States for that district. The Chief 

Justice, in this celebrated opinion, after stating the facts of the case and the issue, proceeds u-s follows : 

When tho decision of this court might lead to such resultsThat is to say, if they were to overturn the government on this 

plea it would unsettle rights of property, &c.-

"Whcn the decision of this court might lead to such results, it becomes its duty to examine very carefully ~t~ own powers before it undertakes to exercise jurismction. 

Certainly, the question which the plaintiff proposed to raise by the testimony he 

offere(l has not heretofore been recognized as a. judicial one in any of the State courts. In forming the constitutions of .the differen.t States after t.he Declaration of Inde. 

pcndence, and in tho various changes and alterations which have sinco been made, 

tho political department has always determined whether the proposed Constitution or amendment was ratified or not by the people of tho State, and the judicial power has followecl its decision. In Rhode Island the question has been directly decided. 

Prosecutions were thoro instituted against som()-()f t.b.e persons who had been active 

in tho forcible opposition to the old government . .And mmore thanono of the cases evidence was offered on the part of the defense similar to the testimony offered in 

the circuit courtThat is, for the purpo e of showing that the proposed constitution 

had been adopted, &c.-

but the court.s uniformly held that the inquiry proposed to be ma.de belonged to the 

political pow"r and not to the judicial. 

Mark here, for the purpose of understanding the scope of the opinion, 

what the Chief Justice wa{3 discussing. He was showing that this 

qnestion could never be decided in a CODft, becaase it was not of a judicial character-it was in its nature political; no judicial court 

conM decide it. That was the point. He says that in all cases since 

the Revolution it h been for the political department to determine 

whether a constitution or an amendment to a constitution bad been 

adopted. ' 

nut the courts uniformly held that the inquiry proposed to be ma.do belonged to the political power and not to the judicial; that it restec1 within the political power to decide whether the charter government h::.d been displaced or not; and when 

that decision was mauo, the judicial department would bo bound W take notice of 

it as the paramount law of tho State, without tho aid of oral evidence or the exam- ination of witucssos; that, according to the laws ancl institutions of Rhode Island, no change had been recognized by tho political power; and that the charter govern- ment wa the lawful and established government of the State during the period in con to t, anu that those who wem in arms against it wera insurl?~nts and liable to punishment. This doctrine is clearly and forciblv stated in roe opinion of tho 

supremo court of the State in the trial of Thomaa W. Dorr, who was the governor elected under the opposing constitution. and headed the armed force whicliendeavored to maintain its authority. Indeed, we do not see how the question could be tried and judicially decided in a State court. 

Not only could the Federal courts not try the question, bnt "indeed we do not see how the question could be tried and judicially decided 

in a State court." 

Judicial power ;presupposes :m established government, c:tpable of enaetinlS laws 

and enforcing therr execution and of appointing judges to expound and administer 

them. The acceptance of ·tho ,judicial office is a. recognition of the authority of the 

government from which it is derived. .And if the authority of that government is 

annulled and overthrown, tho power of its courts and other officers is a.nnnlled with 

it. .And if a State court should enter upon the inquirv proposed in this case, and 

should como to the conclusion that the government unuer which it acted had been 

put aside and displaced by an opposing government, it would cease to be a. court~ 

and be incapable of _pronouncing a judicihl decision UP.<Jn tho question it undertook to try. If it decides at all as a com1i, it necessarily affirms the existence and 

authority of the go>ernment under which it is exercising judicial power. 

That single remark disposes of all that the Senator says about the 

binding effect of the decisions in the State of Louisiana. I will show, 

before I get through, that in point of fact those courts have decided 

that they have no jurisdiction to inquire into it for another reason; 

they cannot even in the case of a parish officer go back of the returns 

made by the returning board and the issue of a commission. They say 

they have no jurisdiction to inquire into the fact of election. Bnt, 

entirely apart from that objection, the broad ground that whether 

there was a governmon tin Louisiana or not is not a judicial but a political question disposes of all the decisions; that is, the opinions pronounced by the judges of the court on that subject. 

I pass a portion of the opinion, and start again on page 10 of 7 Howard: 

Moreover, the Constitution of the Unit-ed States, as far a.~ it bas :rrovided for an omorgency of this kind and authorized the General Government to mterfere in the 

domestic concerns of a Sta ~ has treated. the subject as political in it.s nature, and 

pl~hg fo~~:;~ti~nt~l t~nf~~~ti~!~~~~onstitution of tho United States 

proviilos that" tho United Stn.tes shall guarantee to every State in tho Union are- publican form of government, and shall protect each of t.hem against invasion, and on the application of the Legislature, or of the executive (when the Legislature can- not be convened) against domestic violence." 

Under this a.rticle of the Constitution it rests with Congress to decide what govern- ment i.s the estliblished one in a State. 

Before reading further in this opinion let me remind the Senate of one of the points made by the Senator from Indiana, that we were estopped from inquiring into this subject as a Senate in consequence of tho President's recognition. Although he conceded that the two 

Houses of Congre~:;s could reverse that decision by passing a law 

overtlirowing the government, and nothing else ooulu, he -insisted 

that we as a Senate were estopped, and the House as a Honse were estopped, from inquiring into the subject. Bearing that in mind, let us see what tho Chief Justice says: 

Under this article of the Constitution it rests with Co~ess to decide what gov- ernmentis the established one in a. State. For as the Uruted States !!uarantee to each State a. republican governmen~ Congress must necessarily: dcci8e what ~ov­ ernment is established in the State oefore it can determine who thor it is repubhcan ornot. • 

Now, ma.rk: 

And when the Senators and Representatives of a. State are admitted into the 

councils of the Union, the authority of tho government under which they ar~ ap- pointed, as well as its republican character, is recognized by the proper constitutional 

authority. .And its decisionThat is, the decision of Congressis binding on every other department of the GQverll.ment, and could not be ques- tioned iu a jndicial'tribunal. 

This is the point to which I wish to call the special attention of the 

Senator from Indiana. The Chief Justice here was speaking of a case where the President had interfered, the case of an insurrection against 

tho government of a State, where the call wa.s proper, where the proclamation had ·issued, and the consequence of that interference was under discussion. The judge says: _ 

te;;:,s~1!::t:he contest~ this case did not last long enough to bring the matThat is to say, to bling the matter into Congress to be tliedand aa no Senato~s or Representatives were elected under the authority of the 

government of which Mr. Dorrwa the head, Congresswasnotcalled upon to decide 

the controversy. Yet the right to decide is placed there, and not in the courts. 

Now, let us see how sound the Senator's proposition is, that the ac- tion of the President estops us-and he read this decision to provo it. 

Tho court, in words, say t.hat it is for Congress alone to determine 

this question, and that when they do determine it they bind every 

other department of the Government. The Senator from Indiana haa 

completely reversed the order of precedence 3{3 to authority. 

The Supreme Court in this opinion decide that this is a question 

which the courts cannot decide, but a to which the courts must follow the decision of Congress; that no court, Federal or State, can decide it, because the question is political and not .iudieial. Tho Senator maintains that the courts of the Sta.te have decided it, and thorofore we are estopped to inquire into it. Again, the court holds that 

when Congress passes upon the question it is settlecl by "tho proper 

constitutional authority, and its decision is binding on every other 

department of the Government." The Senator maintains that the Pre ident has decided the question, and therefore Congre cannot ; that 

is, the Senate cannot, the Honse cannot. That there ma.y be no chance 

for the Senator to escape from the conflict between his views :mel the 

doctrine of this decision by saying that he has admitted that Congress 

may by a law overthrow the government the Fresident hru,; established, let me call your attention particularly to what he said upon 

this point. Speaking of the President, he says : 

He ha-s made the decision, empowered thereto by an act of Congress ; and tho court well say, after he has exercised that power, shall a circuit court of the United 

States inquire whether he has done it properly 7 And now I inquire of Senators, is 

it for the Senate alone t{) ask the question whether he has rna do that decision prop- erly 1 If I concede, for the sake of tho argument, that both Houses of Congrt>ss bv n. bill may overrule· that decision, I submit that neither House acting by itself has t.he 

right to do it. 

And again, he says : 

.And now I ask, has the Senate of the United States the right to decide that he 

is not the governor of Louisiana., and thus to overrule the action of tho President to which he has been authorized by an act of Congress 7 'I sa.y no; that while both 

Houses, by a law, acting under the fourth section of the fourth article of the Constitution, may declare what is the lawful government of Louisiana, it is not com- petent for either House, acting separately, to overrule tho decision of the President of the United States in this matter. The fourth section of the fom'th article 

of tho Constitution declares th.<tt the United States shall guarantee to every Stato 

in this Union a republican form of government. Wo have exercised t.b.at pOwer in 

regard to the States which were involved in the rebellion. Their case presented 

the first and the highe.~t !Vound for the exercise of that ~cat power which was known to the history of this GQ>ernment. Bnt how was it w be exercised 7 Exercised by both Houses in the form of a. law, to be submitted to the President of the 

United States for his approval or rejection, not to be exercised by ono House alone 

in any form whatever. 

Here the Senator asserts that the Houses cannot separately decide 

anything about this m~tte1· after the decision of tho President is 

made. 

Now let us see 'vhat the court say: 

.And when the Senatms an( Representatives of a. Stato are admitted into tho 

councils of the Union, tho authority of tho government under which they are ap- pointed, as well as its republican character, is recognized by the proper constitutional authority. • 

And speaking of the government of Mr. Dorr, which in that ca{3e 

the President had overthrown, the court add: .. 

It is trne that tho contest in this case did not last long enouah to brina this mat- ter to this issue; and 1!8 no SenateraorRepresentativeswere ei'ected under the gov- ernment of which Mr. Dorr was the head, Congress was not called upon to clecitle 

the controversy. Yet the right to decide is placed there and not in the courts. 

Here the court in worcls hold that, if the Dorr government, which was overt.hrown uy the decision of the President, had subsequently 

sent Senators and Representatives to Congress, Con~ress would have 

been compelled to decide the whole question by dcmding whether or not they should be admitted. Well, sir, how would that hn.ve been 
1052 CONGRESSIONAL RECORD. JANUARY 30, 

determined Y Bv the two Houses passing a. la.w Y No, sir; no such 

law could havebeen pas ed. The Sena.tewould bavedecideclwhether 

to seat the Senators, and the House as to Representatives. Yet the 

Senator from Indiana reads this opinion to sustain his proposition that 

the Houses of Congress separately could, in such ca{!e, decide nothing. 

Again, the Senator quotes from this decision, which declares that 

this question is political, and therefore cannot be determined in a judicial court, and then triumphantly a ks whether the Senate has 

any jurisdiction in the premises. tiis logic is this: Because Congress 

must, and the courts cannot, decide the que tion, therefore the Senat& can make no decision. This exactly rev&rses the doctrine of the 

comii in Luther vs. Borden which the Senator cites to sustain his proposition. 

Why, sir, in all this business of putting down an insurrection in a State the President is but the mere agent of Congress . . Was it supposed by our fathers, or if we were sitting to-day to frame a. Constitution and were discussing the form in which this power ought to be 

conferred in the Constitution, would we think that the complicated 

questions involved in such a case ought to be settled by the sword f 

Would that be themethod of decision! No; wewouldsay just what 

the Constitution does say, that where an insurrection arises, where 

there is a contest between two factions claiming to be the government, 

and it has swollen to the dimensions of an insurrection, and one party 

is arrayed against the other, one party being the legal government 

and the other not, in that case the President shall restore order. It 

does not matter much whether he sets up the right party or the wrong 

party; . he will bring about a condition of things where the matter can be discussed and considered; he will settle the insurrection; and when 

the government which he has set up or overthrown-to use the language of the gren,t Chief Justice-sends its Senators an~ Representatives to Congre s, then the issue can be settled by the two Houses determining separately who are entitled to seats. This is not only the 

doctrine. of this clecision, but it is the plainest teaching of prudence. 

To send a military fo~ce to settle all the questions that arise in this 

Louisin.nn. difficulty and call that one of the proce ses of a civilized 

government for settling such questions would be simply monstrous. 

There are other parts of the· opinion in Luther vs. Borden which 

ought to be considered in this connection. I shall read one .or two 

passageR, but shall not consume time in commenting upon them. The 

court says: 

So, too, as relatos to the clause in the above-mentioned article of the Constitution, 

proviiling for cases of dome tic violence. It rested with Congress, too, to determine upon the means proper to be adopted to fulfill this !!uarautee. They might, if 

they had deemed it most advisable to do so, have ylaced it in the power of a court to decide when the contingency had happened wluch required the Fe<leral Govern- ment t<1 interfere. But Congress thou~htothcrwise, and no doubt wisely; and by the act of Febrnary 28, 1795, provided that, "in ca e of an insurrection in anv State 

acrainst the government thereof, it shall be lawful for the President of the 'united 

States, on application of the Legislature of such State, or of the executive, (when 

the Le!!isla. ture cannot be convened,) to call forth such number of the militia of any other S'tat-f.l or States as" may be applied for, as he may judge sufficient to suppress such insun•ection." 

By this act, the power of deciding whether the exigency ha<l arisen UP,On which 

the Government of the United is bound to interfere is given to the President. He is to ar-t upon the application of the Legislature or of the executive, and conse- quently he must determine what bodv of men constitute the Legislature, and who 

ill tho governor, before he can act. The fact that both parties claim the right t.o the 

government cannot alter the case, for both cannot be entitled to it. If there is an armell conflict, like the one of which we are speakingThat is, an armed conflict of one government trying to displace 

another, the case of an insurrection against the Stateit is a. case of domestic violence, and one of the parties must be in insurrection against the lawful government. And the President must, of necessity, decide which 1s the 

govermnent, and which 1)"'arty is unlawfully arrayed against it, before he can per- form the duty imposed upon him by the act of Congress. 

Then going on further with the doctrine on this subject and meeting 

the argument that the President might act corruptly or fall into mistakes about it, the court says this: 

Undoubtedly, if the Pre ident, in exercising this power, shall fall into error or invade the rights of the people of the State, it woul(l be in the power of Congress to apply the proper remedy. But the courts must administer the law as they find it. 

Now I assed that there is not one single sentence of that opinion 

which, considered with reference to the context and the facts of the case before the court, gives the slightest color to the idea that the 

President's interfering can bind us in a. case like the one we are now engaged in. Let us see how it would bind us. To a certain extent it 

would bind all the world where he had interfered properly. For instance, he sends troops to arrest a man. No court could release that 

man; Congress could not treat the arrest as ille~al, because, the proper case being made, the President ha~ acted withm the scope of his au- thority, and o far it binds every body. As tow hether this man should 

be held a. prisoner, as to whether this .town should be bombarded or or besieged-on any of these question his determination is our determination, because for that purpo ewe have made him our agent; 

and when he decide , he decides for us in our name, and it is our decision, and so far it binds us, and binds the court, and binds every- body. But when, months afterward, peace is restored, and the question is whether the President erred or not in the selection of the government to be sustained, then the Chief Justice says the question will come before Congress on the application of the Senators and Representatives of the State for admission. · Mr. MORTON. Will the Senator allow me to ask him a question 

at that point f 

Mr. CARPENTER. Certainly. 

Mr. MORTON. The ena.tor, I believe, ac:lmits that in a proper case the recognition by the Pre ident of one government is the act of 

the Government of the Unitecl States, because it is made in pursuance 

of law. 

:Mr. CARPENTER. That is admitted. 

Mr. MORTON. Now, suppose we admit Senators here who :rro com- missioned by the McEnery government, and the other House admits 

members who are commis ioned by Kellogg, what is the condition of 

thingsY 

Mr. CARPENTER. I should think it would bemixed. [Laughter.] 

:Mr. MORTON. I should think so, and the Senator says it is lawful 

to mix it in that way, . 

1\fl:. CARPENTER. I do not see how you can help yourself. Suppose the thing didhappen to-day, what are you going to do about it'l 

Suppose we seat McMillen here from the McEnery government; suppose that the House of Representatives seat men coming from the 

Kellogg government, and suppose the President recognizes a third 

party-what are you going to do about it Y 

Mr. MORTON. What condition does that leave Louisiana in 1 

1\fr. CARPENTER. The truth iait all comes to this: you can regulate these commotions that happen in a State by civil authority np to a certain point. Beyond a certain point they swell out of the limits 

within which they can be controlled by peaceful means· they swell 

beyond the power of the Senate to control, beyond the phwer of the 

House to control, and then it becomes a case again of ori crinal, downright fightiu.g, and the strongest party will be in the ascendant. Your 

courts can go a pace; Congress can go a distance still further; but 

these commotions may come to a point where the fighting has got to come and settle it. 

.Mr. EDMUNDS. May I a8k my friend a. question Y 

Mr. CARPENTER. Certainlv. 

:Mr. ED~fUNDS. In the cage he has last supposed, or my friend 

from Indiana supposed, ot the House decidin<r that the Kellogg Representatives are the trne ones, and so recognizing the Kellogg government, and the Senate deciding that the McEnery Senators are the 

true ones, and so recognizing the McEnery ~overnment, then my 

friend says the case is mixecl. So it is; but 18 not that one of the cases which he has named as going beyond the power of the Senate or of the House separately in acting upon its own special privileges, 

and does it not then become a case for the legislative action of the 

Government, which declares that the Congre s-whichmeans the two 

Houses together, with the approval of the Pre ident-are to interfere 

and settle the dispute¥ 

Mr. MORTON. The Senator from Wisconsin says it comes to fight- ing when it gets to that point. 

Mr. CARPENTER. The trouble is that the Senator from Indiana 

has been up to the :fighting point for about two hours, and he is courting a fight at every point. .At the end of every paragraph that I 

have uttered I have met the Senator'!:! que tion as I thought it deserved. But to be serious, I concur with the suggestion ma-de l1ythe 

question of the Senator from Vermont. 

In a case where the Senate should seat Senators from one government, nnd the House from another, in the arne State, and in many 

ot.her cases which might arise, it is easier to suggest than solve the 

difficulty; and those cases may properly be left until they arise. 

I am n.ot certain that the Hou e of Representatives might not seat 

membe:rs who had recehed a majority of the legal votes in their re- spective districts, although the State government should be conceded 

to ~e overthrown. The election of members of that House depends 

upon the votes of the people in districts which Congress may e tablish. It is otherwise with the election of Senators ; they represent 

the organizecl State, the corporation. And if there be no State government there can certainly be no election of a Senator. But, without 

attempting to solve questions which have not yet ari en, let me como back to the line of remark which I had prescribed for myself. 

The Senator from Indiana claims that Mr. Pinchback should be 

seated as Senator from that State, first, upon the ground of what he 

calls the prim.a fa-<i.e ca e. Here I desire to caJ.l the attention of the 

Senate to what escaped me yesterday, -when peaking on this part of 

the case. I need not spend much time in di cussing this p1·ima facie 

case, because the Senator from Indiana ha.a gone back on it himself. 

The Senator from Indiana in his remarks said-I read from the report 

of his speech: • 

The first question, therefore, that I submit to the euate upon this prima facie case is: Was Governor Kellogg the governor of the tate of Louisiana at the time 

these credentials were sign eO. ~ If ne was, that is the end of thi argument ; we need ;proceed no further. TI we hold that he wan the governor of Louisiana at that 

time m contemplation of law as well as fa<lt, then we need proceetl no further in the 

argument so far as this resolution is concerned, because he certifies that Mr. Pinchback was elected a member of this body. in conformity to law, by the Legislature of Louisiana. 

And yet, :Mr. President, you will bear in mirid that on a later day, 

several clays ago, the Senator from Indiana gave notice of a motion 

to recommit this matter to the Committee on Privileges and Elections, in consequence, he said, of rumors that had rea{lhed his ears about the circumstances under which :Mr. Pinchback was elected. 

The Senator from Ohio [Mr. THuru:IAN] reminds me that the Senator 

from Indi.ana has already substituted that for his original resolution. 

Then the Senator from Indiana stands here asserting, first, that on the 111·imajaci~ case, to wit, the credentials signed by Governor Kellogg, 
1874. CONGRESSIONAL RECORD. 1(}53 

we have no right to inquire any further; and yet he stands here mov- ing that this matter be referred to the committee for the purpose of 

further inquiry. If there were any improper circumstances about 

Pinch back's election, if he was elected by fraud or bribery, conceding 

the Legislature to have been qualified to elect, then, the p1-ima facie case existing, he is to be seated, and that matter is to be discussed 

ub equently; and yet the Senator from Indiana has ~one directly 

back upon his own proposition and moved to recoiDIDit Fhis whole 

ubject to the committee. Mr. Pinchback may have been elected by 

fraud or bribery, and yet if he was in fact elected by a legal body, 

and his credentials are in due form, both according to the principles 

laid down by the Senator himself and the uniform practice of the 

Senate, he is entitled to his seat. Why does the Senator withdraw 

from his position in regard to the p1'irna facie case t He must believe 

that there is some doubt as to whether this man has been elected by a Legislature authorized to elect, or he must have some doubt whether 

Kellogg is governor, or he would not have made a motion to recom- mit this ubject to the committee. ' 

llli·. MORTON. Does the Senator think that the argument he is now making is legitimatet The Senator certainly understood the 

circum tances under which I made the motion and the purpose for 

which I made it· and my remarks, which he has before him, explain 

how I came to offer that resolution; why lfelt constrained to offer it. 

I felt that I had no right to conceal that knowledge from the Senate; 

that that would be to undertake to rletermine myself the question 

that it should not be investigated until after he was admitted, and I 

felt constrained to give the Senate an opportunity of passing upon 

that question. I offered the resolution for that -purpose, and I lmew 

of no other way of getting it before the Senate. That is all in my 

remarks. 

Mr. CARPENTER. I trust the Senator from Iniliana does not 

understand me as disapproving of that motion. I am eommeniling 

him. He has made an argument here stronger than I could make 

against what he calls his prima facie ca,se. He ha.s overthrown it by 

his own motion. It was waste of time for him to ask us if it did not 

estop us when he has himself sh~wn that it did not, by moving to 

refer it to the committee. I say he has done right in making this 

motion. 

Mr. MORTON. The Senator speaks of my motion as being inconsistent with my former argument. I explained fully how I came to 

make it. It was for the purpose of giving the Senate an opportunity 

of passing upon that question in connection with the other questionswhether they would investigate first and seat afterward, or seat first 

and investigate afterward; and my remarks there show it, so that the 

Senator's argument is neither fair nor legitimate. 

Mr. CARPENTER. Well, let us go slow about this matter. I think 

I shall prove th~ it is both fair and legitimate. Let me refer now to the Senator's speech made here on the 16th of December, and see what he said about it then: 

The first proposition that I present on the resolution that I have offm:ed is t.hat 

Mr. Pinchback is entitled, upon his credentials, to be sworn in and t.ake his seat as a member of this body; that he presents what is called a prima facie case, and 

npon that ca e he is entitled to be sw n1 in; and if there are grounds of contest, 

e1ther becanse he was not elected by the right Legislature, or wa-s elected by fraud or bribery, or that there was not a quorum of the two honses present, or that he was not elected in conformity to the act of Con~ess of 1866. those grounds of con- test can only be urged after he has been sworn in and taken his seat, and cannot be 

brought forward now as a rea-son why he shonld be kept out of his seat until after 

those questions have boon decided. 

That is the language of the Senator from Indiana .• He said if 

Pinch back had a prima facie case-and be had one if Kellogg was governor-that ended the question, and the investigation of every other 

objection to Mr. Pinchback must be postponed until he was sworn in 

and became a member of this body. How has the case changed t 

Not at all. Is not Kellogg governor now as much as he was on the 

16th of last mont.hY Isnot Pinchba~k'spri?nafaaie case as good now as it was then t And yet the Senator says that out of respect to the 

Senate he has been constrained -to move to send this case back, to investigate the very questions which on the 16th of December he said. 

could not be investigated until after he had taken his seat. I was referring to that to show that the Senator's subsequent conduct in 

this ca e answered his own argument. Now he appeals to me and 

says, "Is it fair or is it legitimate for you to say that I have acted inconsistentlyin my speech~" I remember that on one occa ion, when 

I had read from a. speech a certain Senator had made two years before 

in this body, the late Senator from Illinois, Mr. Trumbull, came to me and said, "You are a. young Senator here; perhaps you do not 

know one thing." Said I," Very likely; what is it'¥" Saicl he," It 

is an established rule in this body, as among gentlemen, that nobody 

shall refer to the Congressional Globe of more than two years previous." [Laughter.] But I suppo ed I could refer to the CoNGaEsSIONAL RECORD one month back. I supposed I could refer to the 

CONGRESSIONAL RECORD, which contains the Senator's s-peech on this 

very resolution which we are now considering, in which the Senator 

from Indiana, in plain words, says the seating of Mr. Pinchback involves no question but whether Kellogg is governor; and if he was elected by fraud or by bribery-those matters must be investigated 

subsequently. I referred to that to show that the Senator's speech could not be sound, because he had disregarded it himself. 

Mr. MORTON. Will the Senator allow me to interrupt him right 

there ? 

1\Ir. CARPENTER. Certainly. 

Mr. MORTON. To show how eminently unfair th~~tt is, aJ.though I 

do not care anything about it--

Mr. CARPENTER. If you do not care anything about 'it, let me finish. [Laughter.] 

Mr. MORTON. No; let me go on; you said you would allow me to 

do so. 

When I offered this la..st resolution I recapitulated the argument I 

had made before; I took nothing back; I have not taken anythinO' 

back; but I explained the introduction of this resolution about th~ examination of Mr. Pinchback's personal conduct becanse that was a thing that had not been before the Senate before, and I used this 

language: 

Now, Mr. President, within a few cla:vs, a}ldsmce that time, information has come to me of a character that I was not at Uberty to overlook or pass by; in effect charg· ing Mr. Pinchback with improper conduct in connection with his election· which 

charges, if true, wonld, in my opinion, re}lder it improper for him to ha.v~ a seat upon this :floor. Having due reuard to my bo.nor as a Senator, as the chairman of 

the committee charged with suCh investigations, and my duty to the Senate I did not feel at liberty to withhold that information from the Senate and proceed with 

tho original reso!ution asking Mr. Pinchback to be seated. To have withheld that 

information from the Senate would hl\ve been :m assumption upon my part of the 

rigbt to determine the question that Mr. Pinohback shoulcl first be seated and the 

investigation made afterward. I thought I had norinoht myself to determine thAt 

que. tion, and that it wa-s my cluty to bring, it before the Senate and devolve upon the Sena-te the responsibility in reg~rd to tllat question, as well as in regard tooth. ers, whether the Senate would seat Jl.1r. Pinch back first and investigate him after· ward, or would first investi~te him and determine whether he was entitled. to be 

seated afterward. I knew of no way of placing myself, and of gettinrr that question properly before the Senate, than by making the motion which I now sena to the 

Chair. 

It was not inconsistent 'vith my former position, but to place the 

whole matter before the Senate, and I knew of no other way of doing 

it. When the first resolution was offered, this matter in regard to 

Mr. Pinchback's own conduct in connection with his election was not a matter within my knowledge, nor was it embraced in the original 

limits of the discussion. Therefore, in duty to myself and in duty to 

the Senate, I felt bound to place the whole matter before the Senare 

before the subject was acted upon. I do not care what more you say 

about it. 

Mr. CARPENTER. Evidently the Senator does not, and evidently 

he does not care much what he said himself about it. [Laughter.] 

I refer again_ to this proposition. The Senator from Indiana, on the 16th day of December, laid down this proposition, that if Mr. Kellogg was governor of the State, 1\Ir. Pinchback was entitled t{) his 

seat, and we could inquire into no other question. He went on to 

say that w bile he did not propose to hurry this thing through in haste, 

he should demand the early action of the Senate upon the resolution 

to seat Pinch back; that we had no right to keep the State unrepresented while we were inquiring into anything beyond the prirnafaaie case. That Kellogg wa8 governor he maintained by his argument. 

'That being so, the credentials being in form, the whole question was settled, and we could do nothing until we seated 1\Ir. Pinchback, and 

then he might be investigated as to fraud, bribe1-y, or anything else. I then find that the Senator on a sub equent day made a motion to 

refer thi~ matter back to the committee to investigate the matters 

he had before declared could not be investigated until after Pinch back was seated. It is not very important, and! did not propose to make any 

criticism upon the consistency of the Senator, except to show that he 

did not rely very much on the prima facie case himself. But when 

the Senator asserts that there is no inconsistency between his former · speech and his subsequent motion, I must be permitted to say that I 

cannot see it in that light. When on one day he asserts that KelloO'g 

is governor, and that being so the whole subject is ended1. ~d Pinchback must be seated, and all improprieties attending nis election 

must be subsequently investigated; and then on the next day he 

says, "In consequence of things that have come to my knowledge I 

wish to refer this matter back to the committee, so that they may 

investiga,te these improprieties before Pinch back is seated"-if there 

is no inconsistency in those two propo itions, there is not between 

any two that ever were or ever can be stated. 

So much for t.he prirna facie case. The Senator's second point is that we cannot inquire into the existence of the State government, becau e Kellogg's government has been recognized by the President. I have 

said all that I care to about that. Third, because it has been recognized by the supreme court of Louisiana; and, fourth, because it has 

existed de facto for more than a year. 

As to the last proposition, the length of time this government has 

been in existence, that certainly can add nothing to its title. We 

lmow how it has been in existence. It has not been in existence by 

the voluntary consent and assent of the people of Louisiana. We 

know the governor of that State cried for help in May last. We know 

that Federal troops are in New Orleans to-day. We know that that 

government has been sustained by the strong arm of Federal milihuy 

power ever since Mr. Kellogg was inaugurated. Now that the righting of this wrong has been so Ion~ delayed, that a Legislature has 

been pretending to pass laws, and nghts are suppos.ed to have become 

vested 1mder them, are inconveniences very great, I concede, which 

should induce Congress carefully to consider whether, under all the 

circumstances, it is best to do this thing or that, or to do nothing; but on the question I am discussing-the rightfulness of this govern- ment-! say whether it be upheld there by Federal force one year or five is immaterial. If it be a legal government, it was sc)_ the day it 
1054 CONGRESSIONAL RECORD. J.A.L~ARY 30, 

was set up. If it was not then, it is not now; and we understand 

how it has been held up from that time to this. 

But let me say a few words in regard to these remarkable decisions 

of the State court of Louisiana. The Senator says we are bound by 

them. He refers to the settled doctrine that in the Federal judicial 

courts a line of decisions of a State court settling -a principle of local 

law is always followed when the Federal courts pass upon the same question. He must be equally well aware that that rule is subject to 

a,good many important exceptions, and one of these is, that if the 

decisions of the State court are not harmonious, the Federal courts 

will follow that decision which it considers most consonant with 

souml principle. This ha,s been over and over again determined by 

the Supreme Court. 

Let me say, however, before coming to this, that the ground upon 

which the judicial courts of the Union follow the decision of the State 

courts is that an a-ct of Congress has prescribed the State laws as a rule for decisions in the Federal courts in cases where they apply; 

n.nd in ascertaining what the State law is, the decisions of the State 

court, if they are uniform and have been continued through a series 

of years and been respected by the bench and bar of t.he State, a..re taken to be tho highest evidence of what .the local law is ; but not so if they are inconsistent. The Supreme Court of the United States 

in the ca,se of the Ohio Life and Trust Company vB. Debolt, 16 Howard, 432, and a~ain in Gelpecke VB. Dubuqu-e, 1 Wallace, 175, and in 

Havemeyer vs. 1owa County, 3 Wallace, 294, and in many other cases that might be cited, have established this exception to the rule, that 

if th6 decisions of the State court are _ not consistent, the Federal 

court wil follow those which they regard correct in principle. 

I undertake to say that any man who will take the decisions ren- dered by the supreme court of Louisiana, commencing in May, 1872-

the two decisions which I read here yesterday-and the decisions which 

they ha vo made since this con test arose, will find it impossible to enter- tain the slightest respect for anything that court can declare. In 

tho case which I read from yesterday they held in words that the 

attempted removal of Bovee by Governor Warmoth was an absolute 

nullity; that he never ceased to be secretary of state for one moment; 

that Herron, the man he appointed as his successor, never was secre- tary of state at alL And yet, when they came sub equently to decide 

between the two canvassing boards-the Lynch board ·and the Warmoth board-because it was necessary to sustain the Lynch board, 

they decided exactly the reverse. I will try to :find that decision, as it so well illustrates what I mean. Bear in mind that this court, six 

months before this election was held, and when there was no contest, no temptation to do anything wrong, bad held that Warmoth's attempt to remove Bovee was an absolute nullity; t.bat his attempt to 

appoint Herron was absolutely void; that Herron never was secretary 

of state, and could perform none of the duties of secretary of state 

except the routine business of the office, and as to whether he could do oven tha.t they declined to express an opinion. On the 14th of November, 

after this election, and when it was necessary, in order to sustain Kellogg's government, to sustain the validityoftheLynchboard,andin a ca e which was supposed to involve that question, the court used 

this language : 

We think there oon be no doubt that the effort to make Wharton a member of 

the boarll was a b>tru failure. Herron is described by Warmoth himaelf as secre- tary of state, and a member of the boar~ by virtue of such office, up to the appear- ing of Wharb>n, during the proceedin~s, on the second day of the meetin~. The 

<v:iler suspending Bovee as secretary of state and appointing Herron, by tne gov- ernor, on the 29th August, 1871, (which was before us in the case of the State ex rel. Bovee va. Herron,) is jn this record as a part of Wharb>n's testimony. This 

document, the above-named suit, and the published statutes of the State since 

Ausnst:, 1871, show that Herron was de facto secretary of state, and according b> 

tho' opinion in the suit just namod and the constitution and laws of the State the 

goy rnor was wholly without legal authority to suspend, remove, or appoint said 

officer. 

Now see the attitude in which the court in placed. In May they 

clecided that Bovee was not removed and Herron never wa8-secretary 

of state. In December, when it was necessary to sustain the other 

sido of the question, they decided that Herron was secretary of state, amli hat the go~ernor, who had removed Bovee as secretary of state 

aud appointed H(\rron, had no power to remove Herron and appoint 

Wharton ; that is, he had less power over his own appointee than he 

bad over the secretary of state elected by the people. 

The court say, speaking of Warmoth's attempt to appoint Wharton in 1)lace of Herron: 

llis att~mpted appointment of Wharton was an absolute nullity, and gavo Whar- ton no color of authority b> act, either as secretar:v of state, or member of the board 

of returnin.,. officers. Owing to the manner in which the case of the State ex rel. 

llovoo vs. !ferron, decided, finally, about tho time of the events above narrated, was m:ma:;eu, there was a :tina.ljudgment of a court of competent jurisdiction, decreeing tho suspension of Bovee, as secretary of state, and appointment of Herron to discharge the duties thereof b> be legal; and the effect of that judgment continued 

until the decision by this court (about the 2d of December, 1872) just referred to. Hence, as to the worltL Herron was tho acting secretary of state at the above elate, 

and it was not in the power of the governor to remove 'him, the governor having no ·control of said office. 

To understand the absurdity of this decision, I should remind the 

Senate that after the ~overnor did put Bovee out and put Herron in, 

Bovee commenced a srut against Herron, charging that he had intruded 

into the office. They :fixed that up, Governor Warmoth, if I recollect 

aright, appointing a. judge to try tho case; and that judge decided in 

the court below that it was legal fortbe governor to remove the secre- tary of state and appoint Herron. · 

Bovee failed to take his appeal within tho time :fixed by law, and 

when the case reached the supreme court the appeal was dismissed 

for this irregularity. So the judgmeut of the court below remained 

in force as between the parties. Now, whom did this judgment bind 'I 

Every lawyer knows that if it bound anybody it bound Bovee and 

Herron only, and them only because they were parties to the record. 

An erroneous judgment rendered by a court of competent jurisdiction 

binds the parties to the record and their privies, but it binds nobody 

eLse. Now see the beauty of this remark of the court, that, in conse- quence of that erroneous decision, "as to the world Herron was secre- tary of state." They have just reversed the fact. AI3 to all the world 

be was not secretary of state. AI3 to Bovee, touching the question of 

salary for instance, Hen-on was secretary of state. Whyf Because 

that judgment, although erroneous, bound Bovee, he being a party to 

the record; but it bound nobody else. But they say that that errone- ous judgment as to all the world made Herron the secretary of state 

who, as they had decided six months before, never was secretary ol 

state at all; and they held that Herron, who bad been put in by this 

hocus-pocus, was in so fast that even Warmoth could not get him out, 

and the only ground upon which Warmoth could get him m was that 

be had removed the man the people bad elected; and yet he could 

not remove his own appointee. 

If anybody wishes further to pursue the decisions of this court let 

him turn ancl read-for I lack the patience to do it-the case of Bovee vs. Herron, 24 Annual, 595; and if any lawyer will take those cases, 

read the decisions made when the judicial mind was- unclouded by 

temptation, when no contest was pending, no necessity existing for 

any erroneous decision, holding expressly that Herron never was sec- retary of state, and could do no act as secretary of state, and then 

turn to the decisions made six months later by the same court, and can entertain the slightest respect for that court, either its intelligence or its integrity, I yield the palm to him; I cannot. 

But, 1\fr. President, there is another very rich thing in this connec- tion. The Senator from Indiana says that we are estopped; we, the 

Senate, pursuing an investigation which the Constitution lays upon 

us, are estopped to inquire into the fa-cts because the courts of Louisiana have settled them. Now the same supreme court of Louisiana 

in two cases have held, (and they were driven to bold that to avoid 

overturning Kellogg's government altogether,) that they had no authority in any case to go back of the decision of the returning 

board. I hold in my hand a pamphlet, which wa,s laid before our committee by Mr. Marr, and which contains, or is said to contain, 

opinions of the supreme court in ca-ses decided since the report have 

been published. This parnpblet was, however, conceded to be a truthful statement of these decisions. I read it believing it to be so. In the case of Collin·s vs. Knoblock, the court held this language: 

In cases under the intrusion law, courts cannot go behind the eoiiliil.issions legally issued, and to determine the validity of a commi sion, they cannot go beyond the returns and report of the legal returning officer for all elections of the State. 

The returns made by the legal State board, and officially promulgated by that 

board, aa the general returning officers for the State at large, constitute the basis 

upon which the governor is authorized to issue commissions. .. * 11,• * * * 

This prima facie evidence, it is provided, may be rebutted and set asido, but this we apprehend could only be done by proceedings under the smtute of 1855. 

'That is a proceeding before a political tribunal-a contestation as they call it-not in a judicial court. ~gain: 

It is well settled that the judiciary have no warrant or authority to exercise 

jurisdiction in matters of elections, uiiless it bo expressly delegated by the co-ordi- nate branch of .the Government controlling the political department, and no e:\.'J)ress 

authority is granted under the intrusion net to mquire into the correctness of election returns officially promulgated by the legal returning officers. 

* k * * * * * 

The court a qu4 erred in goin~ into the inquiry in regard to the details of the ~~!~: and the correctness of he official returns promulgated by the returning 

This matter ought not to be lightly pa,ssed by. I wish some one was treating this subject now who could do justice to this point. I am not equal to it. But consider this proposition. There was a contest 

growing out of this veryolection; the court below erroneoll8ly thought 

that an election rested upon the votes and not upon the certificate; they 

therefore opened the question as tow bo was elected, and the Kellogg man was beaten because his opponent was proved to have received more votes. The case was appealed to tho supreme court, aud the supremo 

court held that no judicial tribunal in that State had authority to inquire into the fact of an election, but that the ca.nva&S by the board and 

the commission of the governor were conclusive. So they reversed tho 

judgment, and conferred the office upon the candidate p..roved to have 

received tho fewest; votes. Now, the Senator from Indiana maintains that when the Senate, 

pursuing the line of it-s constitutional duty, reaches the question 

whether Kellogg and his associates are the lega..l State officers a.nd bis 

Legislature has been duly elected, we are e topped, because the su- preme court of Louisiana has settled that they are; although tlw.t 

court themselves declare they have no jurisdiction to determine that 

question. The- determination of a court having no jurisaiction t o_ inquire is made conclusive upon an infl_niry as to which tho Constitution makes us the exclusive juuges. This is one of the healthy legal 

propositions which the Senator from Indiana is driven to maintain. 

l\Ir. MORTON. Does the Senator think now that he states the case fullyf 
1874. CONGRESSIONAL RECORD. 1055 

Mr. CARPENTER.· I Jmcsw I &tate it as fully as is necessary to the 

decision of this question. 

:Mr. MORTON. The supreme court of Louisiana in that case decided that they could not go into the question a~ to who was elected, 

because there was another tribunal created by the law to determine 

that question-a special tribunal created by the laws of Louisi.,'tna 

for that purpose, and they are bound by the decision of tha,t tribunaL 

That tribunal is the retuming board. But they do decide who con- stitute the retnming board1 and when they have decided that they 

say that they cannot go behind the decision of that returning board, 

because the jurisdiction is conferred upon that board to make the 

retlll'Ils. That is all of it. 

Mr. CARPENTER. And that is a good deal more than there is of 

it, too. Then the revised position of the Senator is this : W o set out 

here to inquire as to the existence of certa.in officers ; we are estopped 

in that inquiry because the supreme court of the State have settled 

it; and now he says that the snpl'eme court have said they hnd no jurisdiction to inquire into it because some other tribunal had. Well, 

'I do not care what is the reason that the supreme court C{l,nnot inquire 

into it; all that it is nece sary for me to make out in order to show 

that their decision cannot bind us is that the court malring the decision had no jurisdiction to inquire into the facts. If the Senator 

chooses to rest that want of power to inquire upon one ground instead 

of another, it is all the same to me; but still I maintain that we can- not bo bound by the decisions of a court which had no jurisdiction to 

inquire into the question which we nvttBt decide. 

Mr. MORTON. They had jurisdiction to decide which wn:s the 

board, and did decide it. 

Mr. CARPENTER. They had jurisdiction to repeat, parrot-like, as the Senator hns done after them; and so all these questions, from the 

right· of a Senator of the United States down to the right of every 

parish officer in Louisiana, are to be settled by a false retlll'Il, proved 

false in overy court that has ever investigated it; known to be fnJ.se 

by every man who has ever examined it; proveu false by the very men who madeit, and known by the Senator himself to be an unparnllclec). fraud; and that false canvass has estoppe(l the State courts, 

and the State courts estop us, and everything is concluded by a fraud 

which is confessed on all bands and laid bare by an investigation of n committee of this body. . There aro two cases in the pamphlet to which I have alluded in 

which the supreme court of Louisiana hold expressly that they are bound by the commission and cannot go behind it. 

And now, because, as I have said before, it is my purpose never to 

open my mouth about this case again, I desire here to say a few words 

iu regard to the bill which I now give notice I shnll offer to-morrow 

morning, for a new election in the State of Louisiana. I have trio(l 

to show from the record, from the testimony taken by the committee 

nuder the safeguard of an on.th and laid on your table, that Mr. Kellogg never was elected governor, that his associates in the St:1te 

offices never were elected, that the men he calls his egisl:1tur~ never were elected, and that none of them have any decent pretext to claim 

thn.t they are in office in consequence of the e:xpres ed will of the 

people of Louisiana. I shall not again go over these grounds, but I 

cln.im to have established these propositions. We had before us in the committee the original returns which were laid before the De Feriet board by Governor Warmoth. Of those re- turns there are two or three bushels, I suppo e, and we had them in our committee. We sent a ·subpama to Louisiana auu they were brought here. Mr. Ray was before the committee, and :M.r. McMillen was before the committee, and Mr. Pinchback was before the com- mittee conducting their respective sides of the case, and they all 

agreed that tho e were the returns, and agreed that tho ~e rotmns 

showed the result which had been arrived at by tho De Fcriet board; 

that McEnery had 9,GOG majority. There waa no contest about it. :Mr. EDMUNDS. Wero those the original returns¥ 

:Mr. CARPENTER. Certainly. :Mr. ED:MUNDS. Coming from the pruishes f 

:bh'. CARPENTER. Certainly. Mr. EDMUNDS. And sent up to be counted by the State board f 

lh'. C.ARPENTER. Certainly. 

l\Ir. MORTON. Original returns many of which proved to bo outriuht forgeries. 

Mr. EDMUNDS. Like the affidavits on the other ide~ Mr. MORTON. Forgeries iu every particular. 

Mr. CARPENTER. I get consider:1bly confused here as to who is 

muki.ng this speech, the Senator from Indiana or myself, [laughter,] 

but I will 0'0 on for awhile longer. · Mr. MORTON. I thought the Senator had been confused all 

through. Mr. CARPENTER. If I :.tm not, it is certainly not tho fault of t.he 

Senator from Indiana. Ho has done what he could to confuse me. [Laughter.] 

The canvass made l>y the De Foriet board ::mel based upon the re- turns gives McEnery 9,60o majority. Th~ report of the canvass by 

the Lynch board gives Kellogg 18,000 majority. Now, let me repeat., 

the e returns, the original papers, which if there had been no contest 

wh::ttever in Louisiana. as to who consti tuted the returning board, 

would have been laid lJefore that board and would have been can- vassed by the boarcl, were brought boclily into the committee-room 

in the basement of this Capitol for our examination. It is not pretended that with any single retlll'Il there came a statement which 

under the State law. would authorize the returning board to inquire 

into the legality and fairness of the election. Mr. EDMUNDS. If I do not interrupt the Senator I wish to ask a question. The Senator from Indiana states that many of these re- turns coming from the parishes, so called, were totally forgeries, and 

that that appeared before the committee. I should like to know how 

far that extemls. Mr. CARPENTER. That is one of those statements that that Senator from Indiana can make and nobody can help it. 

l\'Ir. MORTON. Does the Senator deny the showing f 

Mr. CARPENTER. I do not deny anything the Senator from Indi- ana says, but I simply say this : I never heard of it before; I mean in the form of evidence. I heard his suspicions. 

1\ir. MORTON. There is evidence showing that in a number of 

instances tho signatures were forgeries, ail in the same handwriting. 

Mr. CARPENTER. Af3 you have rendered me so much assistance 

about this speech, will you not tlll'Il me to the testimony which shows 

thatf 

l\Ir. MORTON. I have not got the testimony her~ now. M.r. CARPENTER, [handing Mr. MORTON the report and testimony.] Cn.n you :find it in the course of a half hour'f If so, I will 

wait. 

Mr. MORTON. P erhaps I can. 

J\.11;. CARPENTER. If I have reached a point where the Senator 

from Indiana will not render me any further assistance, I am in a pretty bad way. [Laughter.] 

I will state to tho Senator from Vermont whn.t I believe the fact to 

be. The machinery of holding the election is this : one officer acts for 

the whole parish, and then they have what are cn.lled commissioners 

at each poll in the parish. When the ballots are put in the box, the 

boxes are taken to the parish seat, from all the polls, counted by the 

supervisor or registrar, whatever his title is, and then the returns arc made out for all the polls, and they arc signed by the commissioners 

of each poll, and then n.ll of them are signed by the supervisor; that 

is, the parish officer. My recollection of the matter is, that in several 

of tho case , taking the polls from any one parish, they seemed all to 

be in the same hand writing, so far as the signatures of the commissioners of tho polls are concerned. The explanation of that, as I understand, is that the commissioners were very frequently men who could 

not write, and the same man wrote the returns, their signatures and 

all; but each one had tho genuine signa.t.ure of the parish officer. I 

understand that to be the fact. If there was any forgery of anything 

beyond that I do not know of it. I know that these returns were before us ; the Senator from Illinois [l\lr. LOGAN] looked over the 

returns and found two or three that he thought were all in the same handwriting. I understand that to be the explanation of it; that they were all from the samo parish, for instance, and all in the same handwriting, except the signature of the parish officer. Mr. LOGAN. If the Senator will allow me, I will state my recollec- tion of it, because I agree with the Senator that there was fraud on both 

sides; so much so that no honest man could say that there was a fair 

electiOn. But there were seven seh~ of returns that were counted by 

the Warmoth bo::trd that I examined myself and asked a witness in 

reference to, and those returns were all.in the same handwritingfigures, certificate , and everything else. I held them up and asked some of the witnesses, I do not remember who, if they were not forgeries; :mel the general understanding was, and the reply was to the 

committee at that time, that those seven Tetm:ns were forgeries from 

head to foot. 

Mr. MORTON. And the Senn.tor from Wisconsin himself agreed to 

it a.t the time. 

.Mr. CARPENTER. I think the Senator frmn Indiana is mistaken. 

Mr. LOGAN. I have no doubt myself that those returns were made 

up at the office. It d.'oes not make the case a.ny better on either side, 

but that, is my recollection of it. 

Mr. CARPENTER. In that respect I am undoubtedly mistaken; 

the Sonn.tor from Illinois no doubt recollects the facts, and the Senator from Indiana is undoubtedly right in thatparticular; but I have no recollection of any witness having been int-errogated on that subject, and I never h eard anything about those returns, as I now remem- ber, until after the testimony was closed, and we were discussing the 

subject. Then I recollect the Senator from Illinois made a statement as to some which he had examined and thought were forgeries. M:y 

present belief is that any examination upon this subject was when I was not with the committee. But take those cases; take them to-da.y; 

send for those returns, and sa.ythat they are forgeries, and throw them 

out in all the cases mentioned, and I think the result would still be 

the same ; in other words, in those cases which the Senator from 

Illinois thinks were forgeries the whole vote in favo.r of McEnery 

would not change the re ult. Is not that so f 

Mr. LOGAN. I will not state positively about that, because I do 

not rememher what theeviclence did show. My impression, however, 

is that it would be different. But tha.t was not~ the reason I sug/Jestod 

it. I only suggested it from the fact that we came to the conclusion 

that the fraud was so evident on both sides that we could not agree 

to anything except the raport which we made. I only speak of these seven rot;urns that I examined myself to show the character of them; 

ancl theso seven returns, my recollection is, were from strong democratic parishes; but I may be mistaken about tha.t. All I examined 
1056 CONGRESSIONAL RECORD. JANUARY 30, 

were of the very same character, whet.her from republican parishes or democratic parishes. My recollection is that the majority of them were democratic, but I am not sure about tha.t. 

Mr. CARPENTER. Be that a,s it may, the returns were thoro; 

genuine or forged, the returns wore before our committee, the re- t.urus that ought to have been sent to the canvassing board. If they 

had been forgerie , and could have been proved to be so, the canva ing board ought to have rejected them. But the boaru which diu canvass Mr. Kellogg in never had any returns, never had,either the 

genuine or forged returns, never hall anything upon which it had any 

legal authority to act at all.* 

Mr. MORTON. Will the Senator allow me a moment right here ' 

Mr. CARPENTER. To which point of my speech do you want to 

reply here f · 

Mr. MORTON. Right in this connection. 

Mr. CARPENTER. I yield. 

Mr. MORTON. Suppoffing that this discussion is intended for the 

development of t.ruth, and not for mere trifling, I desire to can the 

attention "Of my friend to this fact, that in his report he strbted that it was testified before the committee that the control that Warmoth 

had over the machinery of the election was counted equal to 20,000 

votes, and that the testimony before the committee bore out the truth 

of that statement. . Mr. EDMUNDS. Counted by whom as equal to 20,000 votes! 

Mr. MORTON. That when the coalition was formed between Warmoth and the democrats his control over the machinery of the election was counted as equal to 20,000 votes; and the Sen:1tor in his re- port stated that the evidence afterwarrl showed that it was. . Mr. EDMUNDS. Do you mea_n that the Kellogg canvassers made 

that allowance accordingly f 

1\lr. MORTON. No, sir; I am only sta,ting wh:1t the Sen:1tor from 

Wisconsin said in his report. 

1\fr. CARPEN1'ER. I desire to thank my friend from Indiana. He 

has returned to help me, and put in a part of my speech which! should 

have put in myself in three minutes if he had let me nlone, and which 

I am just coming to. I say that these returns are somewhere in ex- istence, genuine or forged. They could have been produced if there 

had been anybody to canva them; but they never have been can- vassed by anybody who has had any pretense of authorit.y except the 

De Feriet board, which was appointed by the governor under the a-ct 

approveu November 20, 1872, and :whose canvass may be found on page 

81 of the report. 

My understanding is that, t:1k:ing all those parishes where it was suspected that the returns were false-I mea,n the papers themselves; 

I am not speaking now about an honest, truthful return, but one which 

has been :1bsolutely forged-throwing out all tho e returns, McEnery 

wonld still be elected byseveral thousand ma,iority; and my recollection is that that was t:1lkedover,and that is where! thinkthe Senator 

has got his impression that the democrats did not claim over six thousand majority. That is, throwing out all the parishes that were questioneu on the ground of forgery would not change the result. I do 

not care anything about that, because the Senator knows very well, 

and the Senate knows very well, that I am not trying to make out 

here that McEnery was elected; I do not believe he was; and I am not tryin~ to make out that those returns ought to preclude us from 

as<rertainwg the facts. I have always contended t.hat they did not. 

But wh:1t was the real fraud committed in that election¥ This 

brings me to the part of my speech that the Senator from India,na 

has just made for me. Governor Warmoth was in po s sion of the 

State; and I mea,n all that these words imply. He owned the Legislature; he had laws passed in blank which he could a-pprove at 

pleas me; he carried the courts in his pocket. He was the St:1te. 

His control over the election, his power to appoint the officers who 

*Since this discussion I have examined the report of the committee, and all I can :find in relation to forged returns is on the last page of the report, as follows : 

"JoHN RAY recalled. 

"WASHINGTON, D. C., Thursday, FebruanJ 13, 1873. 

" The Wr.rNEss. I desire to call the attention of the" committee to a statement, at a suggestion made by one member of the committee yesterday. I examined and fo~mu; and if the committee will act as experts they will :find, that the commissioners of elections in several cases in the parishes have their names forged to the 

affidavit6. For instance, there is one from Madison Parish, [exhibiting the papers,) and so in the parish of Grant also, :md in the pari h of Point Coupee, and the par- ish of East Baton Rouge, which, if the committee will examine as experts, they will find it very evident in some cases that they were forged." 

In the parishes mentioned the returns show the following result: 

· Parish. 

Madison ................................................ . Grant ................................................... . Point Coupee .....•...........•.................•........ East Baton Rouge ....................................... . 

McEnery. Kt~llogg. 

Votes. 837 

514 

1,142 

1,644 

Votes. 

1, 227 

405 

1, 552 

1, 166_ 

Total . ...... ........................................ l---4-, 1-3-7-,:--4, 35"0 

So that if the returns from all these parishes had been excluded as forgenes, Kellogg's vote would have been reduced 213. !twill hardly be believed thAt the demo- crnts were forging returns to increase Kellogg's majority. If McEnery's vote were excluded in these pru:ishes,and Kellogg's counted, McEnery would, as shown by the 

returns, still have 4,469 majority. 

conducted the election, were proved before our committee to be 

worth 20,000 vote in any election in that State. It was aid that 

when they fixed up the fusion between the clemocrats and liberal 

republicans, they counted W :1rmoth's acce ion worth 20,000 votes, 

because he had the machinery of the election in his hands and could 

manipulate it at plea ure. . 

Another mo t remarkable provision of the la,w of that State is that 

the supervisor of registrapion appointed by the governor may determine how many polling places there shall be in each narish, and where 

t.hey shall be located, and these may be varied as to number and location at each election ; so that if the governor wanted to carry tha-t 

State for the republicans he would fix in the republican parjshe a great number of voting places, making it very convenient for voters; 

and in the democratic parishes he would fix only two or three, and 

make men tra\el twenty or thirty miles to get to the polls. If he 

wanted to carry it fusion or democratic, he would reverse that pro- cos and stud the democratic parishes all over with voting places, a nil 

estn,blish but few in the republican pru.·ishes, and those at inconvenient 

points. 

It so happened tha,t this fall Governor Warmoth was acting with 

the McEnery party. He organized that election. There is no doubt 

abO'nt it in my mind, not the slightest. In parishes where there ought 

to be a large republican vote he so arranged the voting places that 

in some instances men had to tmvel twenty or thirty mile to vote . He studied artfully to put the voting pln,ces at the mo t iucon\enient 

points and as far as possible from traveled routes; and the testimony, 

I think, shows th:1t in some instances the people were not informed 

how many voting places there were, nor where they were itua,ted, unt.il 

the very day of the election. The consequence was that in the strong 

republican counties the vote was light, and in. the democratic coun- ties the vote wa hea,vy; and in that way, and bytheobstacle placeu 

in the way of registration of republican , they ecured there ult shown 

by the returns, and, as I believe, completely reversing the will of the 

people. 

Now, Senators may ask me, and my colleague has in conversa- tion two or three times asked me, to point out particularly the testimony that shows this. Well, it is one of those facts which appear I 

think sa,tisfactorily, from the whole ca e. It is not a fact which 

could in the nature of things be testified to positi vcly by any one witness. The testimony does show, hpwever, that all the men that 

had charge of the election were Warmoth and McEnery men. It 

shows that the polls were so established in the republica,n parishes 

that they were next to inaccessible; and it shows, too, that every obstacle possible was thrown in the way of the registration of republican . . In the nature of things, the extent of effect produced by any one of 

these causes can only be estimated· it cannot be the subject of direct 

proof; and this is just the case which ca,n be investigated only by legislative, not by judicial methods. My belief is, that if any judicial 

com-t to-day had jurisdiction of the que tion in Loni iana, tho r ult 

of that election, as held, tha,t is to say the result of the ballots actually cast., would be shown to be th:1t 1\fcEnery was elected; bnt I am equally well persuaded that the result misrepre ents the will anu the intention of the people of that State on that election day, and 

that it was in consequence of these frauds and obstacles in the way 

of registmtion, and the fraudulent location of voting pl:J.ces, that 

Warmoth was a,ble to carry that State by from six to nine thonsancl 

maJority in favor of McEnery. I believe that if my colleague will 

take that testimony, and wade-through it, and devote as m:tny hours as I have clays to the examination of it, he will be thoroughly con- vinced, as I a,m, that such is the ca e, although he may not be able 

to point to any particubr sentence in proof of it. 

It was in the testimony before us tlillt in the parishos of N:1tchitoches, Bossier, :1nd others, the polls were so located that men ha,d to 

travel from twenty to thirty miles . . Now take any of om· Northwestern States, take Wisconsin, and suppose the people had totravel 

twenty-five or thirty miles to vote, and there was nothing of especial 

importance depending on the result, how many of our peoplo would 

travel thirty miles to votef We all know that it iswiththe~reatest 

ilifficulty (and th:1t make it necess:1ry to resort to all campmgn con- trivances, speeche , public meetings, and barbecue ) we c:1n get the 

people out when they have to travel four or five miles to vote. uppose they had to travel twenty or thirty miles, and then suppose such a population as exist-s in Louisiana in the republican parishes, whore 

they were to a great extent poor colored men who had no means of 

conveyance, who had to walk thirty miles to vote and walk back the 

next day, and suffer the expense and fat:i'o-ue of such a journey-how 

many lmder such circumstances would be llkely to vote f So I believe, 

from this testimony and from the whole history of the case, that 

although of the ba.llots actually cast 1\IcEnery ha,d a majority, yet in 

consequence of the frauds committed previous to the election, that 

result utterly reverse what was the wish and intention of that people. 

.And there is no doubt, I think, of one other thing-that but for the 

interference by the General Government McEnery's government 

would have been in existence to-day. It was smothereu, in the first 

place, by Durell, who issued an injunction to the officers of the State 

Legislature, restraining them from calling the McEnery men, and a 11tandam,us compelling them to call the members canvassed in by tho 

Lynch board. Under these circumstances the Legislature which elected 

Mr. Pinchback was organized. While the matter was pending h re before us on the 26th of February, 1873, as I find by the newspapers 

; 
1874. CONGRESSIONAL RECORD. 1057 

of that elate, the following telegram was ~mt from .Washington by 

Mr.Packard,ourUnitedStatesmarshal, to his deputymNew Orleans: 

W ABBINGTON, February 26, 1873. 

T. W. DEKLYNE, Deputy United States Marshal: 

Tell Kello~g to keep his sh.ir1; on. His talk of a compromise only irritates an thor· 

ities. The o'@.y compromise is for members elected to "'0 in and take their seats in . the Le!!islature and that excludes all contest. The McEnery government must be 

broken ~p as so~ as Oongress adjourns. S. B. P ACK.A.RD. 

Congress adjourned on the 4th of :March. It had been telegraphed 

from Washington that the McEnery government must be broken up as soon as Congress should adjourn. Kellogg sent his metropolitan police-a military brigade, armed with Winchester rifles and led by Brigadier-General Badger-ba-cked by United States troops within call, and 

the McEnery Legislature was dispersed by force. Members of the sen- ate and mem hers of the house were arrested. McEnery escaped through a back window. That was what was done by Kellogg in obedience 

to this command from Packard to break up the :McEnery government as soon as Congress adjourned; and McEnery and his Legislature are 

now petitioning Congress to order a new election. 

In this attitude of the case I wish for avery few moments (and that 

will conclude what I have to say) to discuss the power of Congress 

to order a new election. Instead of devoting the mere closing mo- ments of an argument to this subject, it ought to be the s~ject of a day's argument. But I can, in a very few words, indicate the pro- cesses by which my mind reaches the conclusion that we possess the 

power to order this new election. 

The Constitution declares that we shall guarantee to every State a republican form of government. I read tbat phrase to mean that 

the United States shall guarantee to every State a republican government. It could not have been intended that a government which in 

its mere form or. constitutional structure was republican would satisfy that provision. The men who framed the Constitution were men who dealt with substance and fact, not with names and forms. They 

meant to secure ends; and when they declare that the States shall at 

all times have, and that the United States shall take care that every 

State has, a republican government, it means something more than a mere form; it means that the practical governing power of the State 

shall be republican-that is, shall be elected by the people. No government can claim to be republican that is not elected by the people; 

and ther.efore if to-day the powers of that State government are ex- ercised by men who have no right resting on an election, then I say 

that government is not a republican government. I do not speak of 

the mere constitution, (which., I suppose, reposes in some pigeon-hole 

in the state-house.) I speak of the government that exists, the 

power that is seen and felt, that makes laws, that tries criminals, that 

commands militia, that exercises sovereign powers. I say that governins power in Louisiana to-day never was elected by the people of 

Louismna. Therefore I say Louisiana to-day has not a republican 

government. It is fact, substance, which that provision of the Constitution intended to secure. • Now, what is our power, assuming, as I do, that these men were not 

elected 1 It is our duty to guarantee to every State a1·epublican government. That is a full, complete, entire guarantee covering the 

whole subject. Suppose, Mr. President, you had made a lease to some man and his heirs for ninety-nine years, and had covenanted that you 

would keep the fa.rm-house on the premises in good repair; that you 

and your heirs would do so for ninety-nine years, what would be yom 

duty t If the house were consumed from cellar to garret, you would 

be compelled to rebuild the house. If it was partially destroyed by a fire, your duty would be performed by reconstructing the demolished 

portion of it, so that the entire structure would be as good a-s the 

house was when the place was rented. So here in 1865 you found the 

State government entirely demolished, destroyed to the foundation, 

and you commenced at the foundation to reconstruct the government. 

You called a constitutional convention, you authorized the forming of a constitution, you provided for elections under that constitution, you 

set up the entire government from its foundation to its dome. Now, 

then, we find, not the whole State overt mned, but a part of it languishing ; we find the political department of the government on its 

back, and no power in that State to set it up, no power in the Legislature to order a re-election, no power in the constitution of that State 

to have a new election until four years, for State officers. What is 

your duty'f You are to deal with thedemolishedportionofthat government as you would deal with the whole government if it were entirely overturned. It is not il.ecessa.ry here to change the constitution, nor interfere with the supreme court; it is not necessary, in 

other words, to meddle with that part of .the structure that remains 

entire; but the part that is ruined, the part that has lapsed, the political department of the government, you must set on its feet, or it 

cannot exist for four years. I say that it is your duty to order a new election. Your powers are commensurate with your duty. The Constitution does not say bow you shall do the thing; it says you shall 

do it; and you are to employ the necessary means. In this case, 

fortunately, you can perlorm your entire duty, and give them a republican government by simply holding an election and declaring that 

these men when elected shall go mto the offices and take up the 

threads of official life where they would have been to-day had they 

been elected last November. You thus supply the defect in that government, you repair what is wanting, and you give and secure and 

61 

guarantee to that State a ·republican government by putting on its 

feet what is now on its back. 

In the case of Georgiar--not entirely like this, because Georgia was to some extent in the process of reconstruction, her Senators had not 

been admitted, I think, but her members had been admitted into the 

House of Representatives-what was done¥ The Legislature assem- bled there and by intimidation expelled all the colored men so as com- pletely to change the political chara~ter of that Legislature. What 

did we doT We said that was not a republican LegiSlature-! do not 

mean republican in a party sense, but it was not such 91 ~egislature 

as the people had electecl. What did we dot We passed a law re- quiring the officers of that Legislature to call together again the men who had been elected, white and colored, and put them back and or- ganize the Legislature as it was organized originally. No doubt we had the power to do that. No doubt we have the power to do this, 

because when the Constitution, uttering the sovereign command of 

the people, sa.ys the United States shall do a thing, and does not say 

how it shall do it, it may employ any necessary means. This is one of those unlimited powers conferred upon us in gross. 

It could not be limited; it could not be defined; because the framers 

of the Constitution could not foresee all the contingencies and all the 

emergencies that might arise in these States. They granted a general 

power. They say to us, "See to it that at all times every State has a republican government, a government elected by the people of the 

State; and no matter what it may be necessary to do to accomplish 

that end, whether it is to order an election or to reconstruct a Legisla.ture; whether it is to overturn the whole concern and rebuild from 

the base, do whatever is necessary in any particular case; because 

in the name of the people we command you to do the particular thing, 

and leave you all means and the choice of every possible means," not 

expressly prohibited of course by other provisions of the Constitution. 

Now, Mr. President, speaking about ·the government of Louisiana, 

and whether it is republican or not, I hold in my hand a copy of the 

New Orleans Republican, the Kellogg paper, of January 6, 1874, 

glorifying Durell, from its political stand-point not undeservedly: 

Generals SHELDON, SYPHER, Representatives DA.RRA.LL, MOREY, and SMITH, Lientenant-GQvernor Antoine, Auditor Clinton, Superintendent Brown, Secretary of State 

Deslonde, Senator Pinchback, Speaker Lowell, Judge Hawkins, all the republica-n 

members of.both houses who were elected in 1872, in short all the republican officers, 

appointees, ·and employes to-day owe their pla{l6s to the firm, inflexible, learned, 

just man who now seems to be turned over to receive the buffets of the combined 

hosts of democracy. The democratic _Papers were right in ascribing to Judge Dnrell all the credit of having thrown himself timely in the breach and stayed tne - tide of disaster which trea{)hery and cnnnin.e; had wronght for the defeat of republicans. 

That does not overstate Durell's servioes. That government un- doubtedly owes its existence, from Kellogg down to every member of 

the Legislature, to the fiat of a Federal judge; and we are told if we order a new election State rights will be violated. Why, Mr. President, if we had left t.hat m,udcUe alone, if we h :ld wa.-.hed our hands 

of it from the first and stood aloof, then there might be some plausibility in saying "Let them fi~ht it out among themselves." But the 

Government of the United ;::;tates intervened in the affairs of that 

State, and through its judicial department set up a bogus government. Now, says the Senatorfrom Indiana, to rightthiswrongwould 

be to violate State rights, :md on that rallying-cry, a cry that the 

democratic party in this Ch:1II1ber and elsewhere never refuse to follow, the Senator from Indiana, placing himself at the head of the 

democratic party, led them in the contest on this bill last year, and 

defeated the bill for a new election by two majority. State rights! 

A State absolutely defrauded of rightful government by Federal interlerence, and when Congress proposes to redress the wrong and re- lieve the State from this imposition and outrage, "0," says the Senator from Indiana, (and he must have smiled in his sleeve when he said 

it,) "it would violate State rights to undo the wrong that you have 

done in that State." [Laughter.] So that if the people of Louisiana 

have not to-day a government elected by themselves; if they have 

not a republican government; if they have not what the Constitution guarantees to them that they shall have, and make it our duty 

to see that they have, they have what is far dearer to every democrat 

than any practical good-they have State rights! · Mr. President, I propose to vindicate State rights by our action 

here. I sav the State of Louisiana has been trodden beneath the foot 

of a Federal judge. I say that we may not and cannot stand here 

blameless and see that wrong continued. Is there a mau in this 

Chamber to-day, is there a lawyer who hears my voice, who does not 

believe that these orders issued by Durell were without the shadow 

of jurisdiction. Is there a man, be he lawyer or layman, who does 

not know that the original order of Durell, void when issued, was what set up the Kellogg government, and that it ha.s been from that 

time to this supported by military power; and can any man doubt 

that to redress a wrong of that kind would be an act friendly to the 

rights of that State¥ ....... Mr. President, to show how this Louisiana matter is looked upon 

by those who are totally disconnected with the contest, I want to read 

a note of Judge Cooley, of :Michigan, in his edition of Story's works. 

While we were sitting here discussing this subject at the last session, 

he was preparing an edition of Story on the Constitution; and I will 

read the note which he has appended touching this Louisiana matter. 

Mark, this is not the language of a partisan, but of a judge learned 

and revered, separated from this contest geographically, and from uJJ. 

., 
1058 CONGRESSIONAL RECORD. JANUARY 30, 

partisan feelina by his official station. In the calm seclusion of his 

closet where the poet ays the scales which weigh the actions of otl?-- ers ar~ held wHh unfeverislt hand, this judge has appended to this 

constitutional work a note in reO'ard to the subject which I am now discussing, under the clause of th~ Constitution guaranteeing a republican form of government to every State : 

The recent case of Louisiana demonstrates that there may be greater wrongs than even the wron!!ful refusal by Congress to reco!mize the leuitimate government of a State, and yet :fo speedy ancl effectual remedy be attaina.j}le. Sucn a.cti?n on the part of Con !!Tess woulcl at least be that of a proper authonty, and would rmply 

deliberation, an'Ci be supported by a presumption of due re_g~d f?r the pub~c go_od and for the supremacy of the law. But in _the cru:;e of Louuuana ~ 1873, an infenor 

Federal judge, without a shallow of aothonty, an_d consequently ill ~efiance of la;w, 

and for that reason supported by no presumption of correct motives, a;nd Wlth 

scarcely a pretense of obs rvin"' even the usual forms, by the process ?f his co.urt, 

aided by a military force, installe<;l in power a State government which h_e Sld~d with as against nval claimants, and in con.~equence of a pressure of busilless ill 

Congre s precluding pro~pt attention ~o the ca e by th~t body, has l!e~n enabl d to snstain this government ill v.ower until the pr el?-t time. Mr. Justice Stol1' has 

with reason predicted that "if a despo~c or monarchicalgov~~nt were establishecl 

in one State 1t wo~d bring on the rom of the whole repubhc. What governm,ent can be 'TTW'T'e despotur--

.And I call attention to this language particularly, for it bears on 

the precise point now under discussionwhat government can be more despotic than one elected _by an injttncti_on, an~ ClJ'!lr 

tinued in powe1· by a mil.itary force under the or~r of a J'!£Clge who, hav1ng no JUT~· 

diction is restrained by no law bttt ht'.s own arbitrary wtll ? For the facts of this unparalleled wrong we refer to reports made by the Judiciary Committee of the 

United States Senate, in February, 18~3. The ca e_reqoires no further C?mm~nt 

than it there receives. The dullest mmd cannot fa1l to see that the facility Wlth 

which the wron~ is committed, and the pos ible inrmediate advantage -which indivicluals may denve therefrom present constant temptations to its reJ>etition, and if suffered to pass once onreb.:U..ed, a precedent will be tacitly asserted which can· not fail to threaten constant danger to our libertie~, especially at t~ose very periods 

of high political excitement when pro~ence, caution, and the stncteRt regat:d.for the c-onstitution and the laws are most rmportant. What party, or what politic~ 

leader can at such times, be expected to pa,y scrupulous deference to the laws if a j udo-'e may ignore them with impunity 1 It was thought the climax of wrong had 

been 'reached when a local judge ill one of the States could seize upon the property of in(Uviduals and corporations through his injunctio~ and manda~s, aud pl~~er 

them through receivers; but he at lea.st was not acting wholly Wlthout Jlll'l ~ction and if ne seized property, he did not venture to go so far as to make the lib· 

ertiM of the people the subject of a receivership. 

1\fr. President, if I owe an apology to the Senate for the warmth 

of any expressions I haven eel to-d .. 'l>y, I refer, in mitigation, to this 

language of a judge whose blood was not stirred by the excitement 

of debate, and who has denounced the conduct of Jmlge Durell more severely than I have or can, because criticism is always more severe when free from passion and couched in the temperate l~tnguage which 

characterizes the bench. 

1\fr. President, I have done with this matter. I devoted to this investiO'ation several weeks in the committee last winter. I came here 

and ~tail night long until five o'clock in the morning, endeavoring 

and hoping to pass the bill_for a new election. I h~ve perf?rmed my 

duty. I will prepare and rntroduce to-morrow a bill oruermg a new 

election in the Stat.e of Louisiana. I thank yon, fr. Pre ident, and I thank the enate, for the patience 

and the attention with which you have heard me through remarks 

protntcted much longer than they would have been by the fact that 

I am suffering under great physical dep1·ession. Mr. MORTON addressed the Senate; and having spoken some time 

said: 

Mr. Pre ident1 I will not detain the Senate any longer to-night, but 

I have not finished. 

Mr. EDMUNDS. Do I understand that my friend from Indiana 

wishes to go on on Monday 'I 

Mr. MORTON. I have not concluded, I will say to my friend. 

Mr. EDMUNDS. I wish to move to take up the bankrupt bill, if 

there is no objection. Does the Senator wish to go on on Monday 

Mr. MORTON. I should like to continue a little while longer. 

Mr. THURMAN. Let us understand this matter. Do I understand 

that the Senator from Indiana has concluded his remarks~ 

Mr. MORTON. No, sir; I have not. 

[1\fr. MORTON's speech in full will be found in the A pp~nilix.] 

1\fr. EDMUNDS. In that ca e I move, or shnll in a moment move, 

that the Senate proceed to the considera.tion of executive business; 

but I give notice that as soon a.s my friend shall have concludeil., or as soon thereafter a.s it shall be the plea ure of the Senate, I shall ask 

to take up the bankrupt bill. I now move that the Senate proceed to 

the consideration of executive business. The motion was agreed to; and the Senate proceed d to the con- siderati-On of executive business. After fourteen minutes spent in 

executive session the doors were reopened, and (at fotu o'clock aud 

twenty-four minutes p.m.) the Senate adjourned. 

HOUSE OF REPRESENTATIVES. 

FRIDAY, January 30, 1874. 

The House met at twelve o'clock m. Prayer by the Chaplain, Rev. 

J. G. BUTLER, D. D. 

The Journal of yesterday was read and approved. 

HOURS .U.TD WAGES OF LABOR. 

Mr. MONROE. The Committee on Education and Labor instruct me to report back one or two matter. , without any discn ion or com- ment. The first is the petition of M. Spahn and other , r pre. nting 

the Bricklayers' A ociation of the District of Columbia, praying for 

relief in regard to the· number of hours of work ancl the wages of 

labor upon puLlic works of the United States. The Committee on Education and Labor have con idered this subject, and ask to be discharged from the further consideration of it, because they regard it as a matter for the executive r ather than for the legislative branch 

of the Government. It is rather a question of administration under 

the law than a que tion for this place. I move that the committee 

be discharged from the further consideration of the subject, and that 

the same be laid on the table. · The motion was agreed to. 

LIQUOR TRAFFIC. 

Mr. :MONROE. The Committee on Education and Labor also ask 

permission to report back to the House certain petitions prayin~ Congress to authorize a commission to inquire into the liquor traffic and 

it influence to produce pauperism and crime; and ask to be discharged 

from their further consideration, because petitions of this class and 

certain bills relating to the same subject have, by common con ent, 

been sent to the Committee on the Judiciary, where I uppose the 

subject properly belongs. I move that the committee be discharged 

from the further conSideration of the petitions, and that they be 

referred to the Committee on the Judiciary. The motion was agreed to. 

BREAKWATER AT CLEVELAli.TD, OHIO. 

Mr. PARSONS. I ask unanimous consent to pre ent the memorial 

of the city council of Cleveland, Ohio, relative to tlte construction of a harbor of refuge at Cleveland, Ohio, and a resolution on the same subject of the Board of Trade of Cleveland. I desiJ:·e a few minutes, 

not exceeding fifteen, to explain the matter. 

The SPEAKER. The gentleman from Ohio [Mr. P ARSO)l' ] asks 

that, by unanimous consent, he be allowed fifteen minutes to make some remarks on the subject of the memorial and resolution he hns presented. The Chair hears no objection. 

Mr. PARSONS. 1\fr. Speaker, I desire to call the special attention 

of the House to the resolutions I have hafl the 'honor to present for 

its con idera.tion. These resolutions were passed by the Board of 

Trade and city council of Cleveland, and rela.te to the pre ing neces- ity which exists for the building by the General Government of a harbor of refuge at orne point adjacent to or near that city. I am painfully aware, sir, that a grave duty is imposed upon us, as the Repre entatives of the people, at this time to watch with jealou care all demands made for the expenditure of the public moneys. 

And I am equally aware that it is the desire of this House to avoid as far a possible the voting for the construction of any new works 

of magnitude, which may call for a large expenditure of the public 

treasure. No man, I trust, sir~ upon this floor appreciates the situation of the country more keenly than myself, or will endeavor to 

the extent of bis ability to aid the Honse in all it legi lation with an eye single to the strictest economy and prudence, in every branch 

of the public service. But, sir, a long and somewhat varied experi- ence in public life has convinced me that there may be a too rigid 

economy that is not prudence, and an apparel).t saving that ends in 

lo , and often time in po iti ve disaster. It is with nations as with 

individuals-" There is that scattereth, and yet increa eth; and there 

is thnt withholdeth more than is meet, but it tendet.h to poverty." 

\Vhile for the moment there has come a time in the history of the 

country when it expenses are larger than its receipt , yet it does not 

follow, n.sthe gentleman from New York [Mr. Woon]ha tated, that 

tl1e nation is bankrupt, or that its credit is in any manner impaired. 

Nor does it follow that, Lecause of this temporary decrease of income, 

the public works are to be arr ted, the public bniMings permittefl to fall into decay, the public docks, piers, :.md wharves, built 

at enormous expense, to perish for needed repairs, or that our harbor 

and rivers are to be neglected, and the funds necessary for keeping 

them in proper order are to be withheld, or the great channels of 

trade and commerce of this mighty nation to be in any manner obstructed for the want of needful and proper expenditures. The com- merce of the country is its life; and whatever is absolutely necessary 

to aid, foster, encourage, and protect it must be clone. To permit it 

in any manner to languish or, become crippled will prove the mo t 

disastrous economy that was ever practiced by any people, and, iu 

the end, would produce the very poverty, bankruptcy, and ruin that 

every wise man seeks to prevent. 

During the last five years the administration of General Grant ha 

paid over four hundred millions of the public debt, a far greater um than the law required. If this enormous decrease of the public debt 

has be n made too rapidly, or in any manner beyond the nece sitie 

of the public intere t , we can, without detriment, top this policy by 

withholding taxation, until the material interests of the country will 

warrant its resumption. It is entirely practicable, and in my judgment wholly consistent with the wisest economy, and without imposing any aJ.ditional taxes upon the people, or inflation of the volume 

of the cunency, to provide by a temporary loan, for a year or two,