276 CONGRESSIONAL REOORD-SENATE. DECEMBER 19, 

By :Mr. BUCKNER: Tho petition of Pat. 0. Hawes for pay and allowances as aduitional Representative from Nebraska, to the Committee of Accounts. 

By Mr. HALE: Memorial of the Board of Trade of Denver, Colorado, that Denver be made a port of entry, to the Committee on Com- merce. 

By Mr. McCRARY: The petition of William E. Hawthorne, late a pnvate in Company K, Thirteenth Regiment Iowa Volunteers, for a pension, to the Committee on Invalid Pensions. 

By Mr. ROBBINS, of North Carolina: Resolutions of the General 

Assembly of Nort.h Carolina, instructing the Representatives in Congress from that State to use their influence to so alter tho revenue laws 

relating to whisky, brandy, and tobacco as to make said laws less oppressive on the citizens, and if this cannot be accomplished to vote 

for the repeal of the same, to the Committee of Ways and Means. 

Alao, resolutions of the General Assembly of North Carolina, requesting the Representatives in Congress from said State to use their influence to so modify or repeal the revenue laws of the United States as to give to the pl'Oducer the right to distill, for his own use, his fruit; 

also, to repeal or modify the tax on leaf tobacco, to the same committee. 

By Mr. VANCE, of North Carolina: The petition of certain em- ployes of the House, relating to payments to them for services in the 

folding-room of the House, to the Committee of Accounts. 

By Mr. WALDRON: Papers relating to the petition of Harriet S. 

Baker, for a pension, to the Committee on Invalid Pensions. 

. 

IN SENATE. 

TUESDAY, ])ecember 19, 1876. 

Prayer by the Chaplain, Rev. BYRON SUNDERLAND, D. D. 

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

EULOGIES ON THE LATE SPEAKER KERR. 

Mr. MORTON. Yesterday resoiutions of the House of Representatives were transmitted to the Senate communicating intelligence of 

the death of Mr: Kerr, t"Qe late Speaker of the House. I had a conver- sation with my colleague, [Mr. McDoNALD,] who is now absent fron 

the Senate in the discharge of official duty, and it would be entirely 

agreeable to his feelings and mine to have the resolutions lie upon the 

table until my colleague returns to the Senate, and then a day will be 

fixed upon for considering the matter in the Senate. 

The PRESIDENT pro tempore. If there be no objection the resolutions will lie upon the table until the Senators from Indiana desire 

to have them called up. 

HOUSE BILLS REFERRED. 

The bill (H. R. No. 4187) making appropriations for the service of 

the Post-Office DepartmeJlt for the fiscal r,ear ending J nne 30, 1878, 

and for other purposes, was read twice by 1ts title, and referred to the 

Committee on Appropriations. 

The bill (H. R. No. 4207) to remove the political disabilities of F. 

E. Shepperd, of Virginia, was read twice by its title, and ref~rred to 

the Committee on the J udioiary. 

POST-ROUTE BILL. 

The PRESIDENT pro tempore laid before the Senate the action of 

the Hoose of Representatives disagreeing to certain amendments of 

the Senate to the bill (H. R. No. 3628) establishing post-roads. 

Mr. HAMLIN. I move that the bill be referred to the Committee on Post-Offices and Post-Roads that it may receive the consideration 

of the committee before we take any action on the disagreeing votes 

of the two Houses. 

The motion was agreed to. 

EXECUTIVE COMMUNICATION. 

The PRESIDENT p1·o ternpore laid before the Senate a letter from 

the Secretary of State, transmitting, in compliance with section 208 

of the Revised Statutes, a statement of the names of consular officers, 

not citizens of the United States, to whom salaries have been paid 

during the :fiscal year ending June 30, 1876; which was ordered to lie on the table and be printed. 

PETITIONS AND MEMORIALS. 

Mr. NORWOOD presented the petition of John R. F. Tattnall, of 

Georgia, praying for the removal of his political disabilities; which was referred to the Committee on the Judiciary. 

Mr. SPENCER presented the petition of the Methodist church of 

Allston, Massachusetts, signed by the pastor and officers, praying for 

prohibitory legislation for the District of Columbia and the Territories; the prohibition of the foreign importation of alcoholic liquors; that total abstinence be made a condition of the civil, military, and 

naval service; and for a constitutional amendment to prohibit the 

traffic in alcoholic beverages throughout the national domain; which was referred to the Comm1ttee on Finance. 

Mr. MITCHELL presented the petition of F. G. Schwatka, of Oregon, praying compen.~ation for damages alleged to have been sustained 

by him by the use and occupancy by the United States authorities of 

certain lands in Oregon, known as donation lands, upon which he had 

settled; which was referred to the Committee on Claims. 

I 

, 

REPORT OF A COMMITTEE. 

Mr. WINDOM. I am instructed by the Committee on Appropriations, to whom was referred the bill (H. R. No. 4120) making appropriations for the payment of invalid and other pensions for the year 

ending June 30, 1878, to report it without amendment and recommend 

its passage. If there be no objection, I will ask that it be put upon 

its passage now. The bill has been printed and the committee report 

it back without any amendment. 

Mr. EDMUNDS. 0, no. I object. I am in favor of the bill, but I 

object to its present consideration. 

BILL RECOMMITTED. 

Mr. MORRILL. I am instructed by the Committee on Finance to move that the bill (S. No. 1040) to allow the late collector of internal revenue for the fourth district of Georgia his salary, hitherto withheld, be recommitted to that committee. 

The motion was agreed to. 

BILLS INTRODUCED. 

Mr. MITCHELL asked, and by unanimous consent obtained, leave 

to introduce a bill (S. No. 1090) for the relief of Assistant Surgeon 

Jenkins A. Fitzgerald United States Army; which was read twice 

by its title, and, with the accompanying petition, referred to the Committ-ee on Military Affairs. 

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

introduce a bill (S. No.1091) to establish a post-road; which was read 

twice by its title, referred to the Committee on Post-Offices and PostRoads, and ordered to be printed • He also asked, and by unanimous consent obtained, leave to introduce a bill (S. No. 1092) for the relief of Jerome Kunkel j which was read twice by its title, referred to the Committee on Military Affairs, 

and ordered to be printed. 

Mr. PAD DOCK asked, and by unanimous consent obtained, leave 

to introduce a bill (S. No.1093) granting a pension to C. H. Frederick; 

which was read twice by its title, and, with accompanying papers, re- ferred to the Committee on Pensions. 

THOMAS DAY. 

Mr. WRIGHT. I move that the Senate proceed to the consideration 

of the bill (H. R. No. 3504) for the relief of Thomas Day. 

The motion was agreed to ; and the Senate, ae in Committee of the 

Whole, proceeded to consider the bill. 

It authorizes the Secretary of the Treasury to pay to Thomas Ds.y, 

of Indiana, $640.75, in full payment and satisfaction for the use of 

nursery grounds at Madison, Indiana, by the United States1 in the 

year 1863, for a military post and for barracks and hospital purposes. 

Mr. DAVIS. There is a report, I presume, in that case f 

The PRESIDENT pro tempore. There is a report. 

Mr. DAVIS. Let it be read. 

The PRESIDENT pro tempore. The report will be read. 

The Chief Clerk read the following report, submitted by Mr. 

WRIGHT, from the Committee on Claims, July 28, 1876: 

The Committeee on Claims, to whom was referred the bill (H. R. No. ~04) for the 

relief of Thomas Day, submit the following report: The report of the House oommittee is as 'follows; 

"That this claim was before the Forty-third Conj!l'ess, and a favorable report 

thereon made by Mr . .TAMEs WILBON, of the War Claims Committee of that Congress, now a member of this committee. 

"This claim is for the use and occupation of nursery-grounds by the United States, 

situated in .Tefferson County, Indiana. Said grounds were occupied and used dur· 

ing the war of the late rebellion as a militarr post for barracks and hospital purposes. Your committee believe, from the evidence, that the claima.nt iPJ entitled to the sum of f640.75 as a compensation for the said use and occupation. They report the accompan,.ing bill, and recommend ita passage." This conumttee only add that the testimony abundantly supports the findings, and also shows that the Quartermaster's Department declined to pass upon the 

claim, as it was for damages, a subject over which it had no jurisdiction, and re- mitted the same to Congress. The grounds were taken possession of in .Tanuary, 1863, and at a time or season of the year when it was impossible to move the trees. Wereconunendthep~ageofthebilL 

:Mr. MORRILL. May I ask the Senator from Iowa if there was not an adverse report made by a. Senate committee on that claim some years ago f 

Mr. WRIGHT. Not to my knowledge. 

Mr. MORRILL. I think there was. Mr. WRIGHT. The record was examined very thoroughly, and my 

impression is that there was no adverse report by any committee, 

either of this body or of the House. 

Mr. EDMUNDS. How do you account for this long delay f 

Mr. WRIGHT. There was a favorable report in the Forty-third 

Congress from the committee of the Honse. The case has been pending for about six or eight years. • Mr. EDMUNDS. I have the impression that some claim like that 

has once been reported adversely here. 

Mr. WRIGHT. I feel very certain that my friend is mistaken. I 

know that the record wasexamined very .thorougblybyour clerk and 

also by themembers ofthecommittee,andnosuchclaim ha.severbeen 

passed upon adversely. 

Mr. EDMUNDS. What is the name f 

Mr. WRIGHT. Thomas Day. · ?t!r. EDMUNDS. I rather think that had better lie over until to- mo!l'ow,~d we can look at it. 

Mr. WIUGIIT. The bill is already before the Senate. 

Mr. ED~S. Was it reported to-dayf 
1876. CONGRESSIONAL RECORD-SENATE. 277 

Mr. WRIGHT. O, no; it waa reported at the last sees10n. 

The PRESIDENT pro tempo1·e. The bill is in the Committee of the 

Whole and open to amendment. 

Mr. EDMUNDS. Then we cannot help it. 

The bill was reported to the Senate without amendment, ordered to a third reading, read the third time, and passed. 

MESSAGE FROM THE HOUSE. 

A meesage from the House of Representatives, by Mr. GEORGE 11!. 

ADAMS, its Clerk, announced that the House insisted upon its amendments to the amendments of the Senate to the bill (H. R. No. 4124) 

to provide for the expenses of certain special committees, agreed to 

the conference a.~ked for by the Senate on the disagreeing votes of the 

two Houses tllereon, and had appointed Mr. WILLIAM: S. HOLMAN of 

Indiana, Mr. JOHN D. C. ATKINS of Tennessee, and Mr. EUGEJ\TE 

HALE of Maine managers at the conference on its part. 

REPRESE:NTATIVES OF SAMUEL WARE. 

Mr. BOGY. I move to take up tho bill (H. R. No. 97) directing the 

Commissioner of the General Land Office to issue a certificate of re- location for six hundred and forty acres of land in the Territory of 

Missouri to legal representatives of Samuel Ware. 

The motion was agreed to; and the Senate, as in Committee of the 

Whole, proceeded to consider the bill. 

The pream blo recites that Samuel Ware was the own or of land claim 

No. 438, located in the county of New Madrid, in the then Territory 

of Missouri, for six hundred and sixty arpents, which was confirmed 

by act of Congress of tbe 29th of April, 1816; that the lands having 

been injured by earthquakes, he availed himself of the provisions of 

the act of the 17th of },ebruary, 1815, whereby persons owning lands 

in the county of New Madrid which were materially injured by earthquakes were authorized to locate the like quantity Qif lands on any of 

the then Territory the sale of which was authorized by law; that, in 

pursuance of this law, Ware relinquished his claim to the land con- firmed'as No. 438, under the act of the 29th of April, 1816, and applied 

for a certificate of relocation; and that on the 16th of August, 1816, 

Frederick Bates, recorder of land titles,didissue to Samuel Ware cer- tificate of location No. 63, which was afterward located on the ea.st 

half of section 12, township 24 north, of range 17 east, and the west 

half of section 7, township 24 north, of range 18 east, on Wolf Island, 

in the Missiseippi River, upon the supposition that the island was in 

the State of Missouri; and that it has been decided by the Supreme 

Court of the United States (11 Wallace, 395) that the island belonged 

to the State of Kentucky: Therefore, 

The bill requires the Commissioner of the General Land Office to 

issue a certificat-e of new location to the legal representatives of 

Samuel Ware, authorizing them to locate the certificate on six hundred and forty acres of any-land in what was Missouri Territory, subject to sale. . Mr. EDMUNDS. What committee reported this bill f ~ Mr. BOGY. It was reported from the Committee on Private Land 

Claims. The Senator from Vermont is a member of that committee. .There is no objection to it. 

Mr. EDMUNDS. Is there a report T 

\ The PRESIDENT pro tempore. There is a House report, the Chair 

understands. 

Mr. EDMUNDS. !should like to hear it. 

Mr. BOGY. There is no report, because the preamble so fully ex- plains the whole object. I can explain the case in a minut-e. There was a location of a claim on an island called Wolf Island, in the Mississippi River, and which for many years was believed to be in the 

State of Missouri. After a time the question was tested as to the fact 

whether the island was in the State of Missouri or in the State of 

Kentucky, and it was decided by the Supreme Court that the island was in Kentucky and therefore the location was void. Now his representatives desire to locate the same quantity of land in the State of 

Missouri. I presume the Senator is familia.r with the facts. The matter was considered very fully before our committee, of which I believe 

he is a leading member, and we agreed to make a unanimous report on this bill at the last session. 

Mr. EDMUNDS. That leads me to have some question about this 

claim. If a committee of which I am a leading member unanimously 

agreed to report this private claim, I begin to. think there mnst be 

something wrong about it. [Laughter.) But what I wish to ask, as I remember the matter generally, but it is a little out of my mind, is 

whether it appeared clearly before the committee that this claimant 

had actually failed to obtain the land, whether in Missouri or Kentucky, which his location called forT 

Mr. BOGY. I remember the point was raised before the committee 

and the information was conveyed to the committee-I am not prepared fully to go into the details-that Ware actually lost his land on the island. 

Mr. EDMUNDS. Very well; if that be so, of course he ought to 

have it somewhere else. 

The bill was reported to the Senate without amendment, ordered to a third reading, read the third time, and passed. 

N.H. VANZANDT. 

Mr. WITHERS. I move the present consideration of Hollile bill No. 

2736. 

The motion was agreed to; and the bill (H. R. No. 2736) to remove 

the political disabilities of N. H. VanZandt, of Virginia, was considered as in Committee of the Whole. 

The Committee on the Judiciary proposed to amend the bill by striking out the words'' act of July 2,1862, and the" before "fourteenth;" so as to make it read : 

'}'hat all the political disabilities imposed by the fourteenth amendment to the 

Constitution of the United States upon N.H. VanZandt, a citizen of the State of 

Virginia, be, and the same are hereby, removed. 

The amendment waa agreed to. 

The bill was reported to the Senate as amended, and the amendment was concurred in. 

The amendment was ordered to be engrossed, and the bill to be read. a third time. 

'Ihe bill wa~ read the third time, and passed by a two-thl.rds vote. 

WILUAM S. MORRIS AND OTHERS. 

Mr. WALLACE. I move to take up the bill (S. No. 405)fortherelief of WilliamS. :Morris, WilliamS. Mann, Charles A. Oakman, George 

W. Hillman, the Union Transfer Company, all of Philadelphia, Pennsylvania; the Union Transfer Company of Baltimore, Maryland; and 

John R. Graham, late of Philadelphia, now of "washington, District 

of ColGmbia. 

Mr. SHERMAN. Let the report be read. 

The Secretary read the following report, sub mitte(l by Mr. WADLEIGH, from the Committee on Claims, on the 2d of August, 1876 : 

The Committee on Claims, to whom was referred the bill for the relief of William S. Morris and others, reapectfully report : The parties named in the bill were s.ll enj.!;aged in the business of carrying pallS· 

en_gers and baggage in the city of Philadelphia. 

The collector of internal revenue for the district in which these parties did busi- ness assessed and collected from them taxes aggregating the amounts respectively 

named in the bill, under the alleged authority of section 104, act of June 30, 1864, 

which provides as follows : • "That any person, firm, company, or corporation carrying on or doing an express 

business shall be subject to and pay a duty of 3 per cent. on the gross amount of all 

the receipts of such express business." - It appears that in a large number of cities the officers of the revenue did notcon- strue this law as applicable to persons engaged in business similar to that of the 

parties named in this bill; that the carrying of passengers and ba~gage on no contin- uous or fixed route was not" an express business within the intent of the statute;" 

but that in some cities now, notably New York, Philadelphia, and Chicago, taxes for such business were assessed and collected. . It appears that, in consequence of this want of uniformity, on Aprill6,1870, the 

Commissioner of Internal Re,enuc instructed S. B. Dutcher, supemsor, New York, 

that "it is only those who do their busine88 on regular routes that should here· 

garded aa engaged in an express business and liable under section 104. * "' * If taxes under section 104 have been assessed contrary to the above ru1e * * * you will see that collection is suspended and claims for abatement prepared." 

Subsequently, as a consequence of this ruling of tho Revenue Department, va. rious parties who had paid such taxes made claims to have them refunded. Among 

these, Dodrl's Express Company, of New York, filed claims July 14, 1&70; Parm· 

lee's Local Express Company, of Chica,!!o, August 28, 1871; Westoott's Express Company, of New York, September 22,1811, anu the parties named in the bill under 

consideration, at various times during the years 1871 and 1873. All of these claims • were rejec-::ed by the Commissioner of Internal Re'f"enne, anfl, as a consequence, 

Parmlee's and Dodd's Expresa Companies brought suit in the United Stat-es courts, 

and, obtaining ,judgmenta in their favor, the Commissioner of Internal Revenue re- opened all their claims that he had previously rejected, and refunded the taxes they had paid. · It appears from the evidence on file that the parties named in this bill did not bring suit to recover the taxes/-aid by them, for the reason that they were given to understand, by the offict>rs o the Internal Revenue Bureau, that the Depart- ment would govern itself by such decision as might be given by the courts in the 

Dodd ca-se, and after that decision, if in claimant's favor, would re-open their cases and llooide them in accordance therewith. 

On application, however, to Hon. D. D. Pratt, who succeeded to the office of Commissioner of Internal Revenue, that these cases b'e re-opened and reconsidered in 

view of the decision of the courts and t-he fact that other similar claimants bad been 

refunded the taxes paid by them, be declined to re-oyen them on the ground tJlat 

" these claims were all rejected by my predecessors m office, and under the rules 

govern.ing this office I have no authority to re-open them." It appears, however, 

that after refusing to re-open the cases of these parties he did re-o{)tln the case of Westcott's Express Company, of New York, whose claim was origrnally filed at about the same time as that of these claimants, and refunded to tliem $21,559.37. 

In a letter to your committee, April5, 1876, he states, "I understand that the claims are of the same nature as the claim of the Westcott Express Company;" though 

he adds, as a reason for his difference of a{ltion in the cases, that " the only differ- ence in their status at the time of my entrance upon the duties of this office being 

that the fornier stood rejected while the latter was a pemling claim." · . It appears, therefore, to the committee that claims filed at the same time as those 

of the paTties named in this bill, and of precisely the same nature. have been paid, and that tho only obstacle to the claimants in this case having their caees recon- sidered under the same rulings that have been applied to all other similar cases is a purely technical one, caused by a change in the incumbency of the office of Commissioner of Internal Revenue. And it further appears that the claimants have no other method of relief except by an act of Congress that will authorize the Com· 

missioner to J;Oview the cases, as their long pen.dency in the Revenue Department, 

through no fault of the claimants, baa caused the time to elapse within which they 

oonld bring their cases before the courts. Tho committee, therefore, are of the opinion that the bill shou1d pass. In this 

opinion we are sustained by the CommiReioner of Intern.al Revenue, who states " that as the bill does not direct the refunding of the amount claimed, but simply directs 

the Commissioner to re-open and reconsider the claims, I can see no objection to its 

bE-coming a law." He further says, "I would suggest an amendment at line 5 in 

the bill, so that it may read ' t:u.es alleged to have oeen improperly and illegally 

assessed and collected.' " 

The committee recommend that line 5 of the bill be amended so as to read "of taxes alleged to have been improperly and illegally assessed and collected," andreport that the bill thus amended ought to pass. 

The PRESIDENT p?'O tempore. The question is on the motion to take 

up the bill for consideration. 

The motion was agreed to; and the Senate, as in Committee of the 

Whole, proceeded to consider the bill. ' 

The Committee on Claims reported an amendment to the bill in 
278 CONGRESSIONAL RECORD-SENATE. DEOE!\IBER 19, 

line 5, after the word "taxes," to insert the words "alleged to have 

been;" so as to read: , 

That the Commissioner of Internal Revenue be directed to re-open and recon- sider the following claims for the refunding of taxes alleged to have been improperly and illegally assessed and collected. 

The amendment was agreed to. 

Mr. W ALL.ACE. I move to strike out all ft·om and including the 

word "or" in the twenty-second line to the end of the bill. The 

words I pTopose to strike out are "or that shall appear to be unjustly or illegally assessed or collected," so that it shall be simply" to refund 

and pay back all of said taxes erroneously assessed and collected," 

and not for those which shall appear to be so. The amendment was agreed to. 

The bill was reported to the Senate oo amended, and the amendments were concurred in. 

Mr. WRIGHT. May I be allowed to inquire of the Senator from 

Pennsvlvania whether the last amendment was an amendment from 

the committee or an amendment suggested by himself¥ 

.Mr. W ALL.ACE. .An amendment suggested by myself. 

Mr. WRIGHT. I should be very glad to have the amendment re- ported acrain. I woo encraged at the moment. 

.Mr. WALLACE. The 1ast clause of the bill is, "or that shall appear 

to be unjustly or illegally assessed or collected." I moved to strike 

out all after and including the word "or," so that the Commissioner 

will only be authorized to refund the taxes erroneously assessed and 

col1ected and not those which shall appear to be unjustly or illegally 

assessed or collected. It certainly will not hurt the Government. 

.Mr. EDMUNDS. I should like to inquire of somebody who knows 

whether there has been any judicial decision that covers cases of this 

character, going to show that this money was illegally exacted T 

:Mr. W ALL.ACE. The report of the committee refers to a case which 

went to the Court of Claims standing on precisely the same footing in 

which the Court of Claims ruled that--

:Mr. EDMUNDS. 'Vhat volume is that r 

.Mr. W ALL.ACE. I am unable to say. 

Mr. EDMUNDS. What is the name of the case f 

.Mr. WALLACE. The Dodd case. lli. EDMUNDS. Did it go to the Supreme Court of the United 

States f 

Mr. W .ALL.ACE. I know nothing of that. It was decided by the 

Court of Claims. The report, as the Senator will see, is based on a letter of the Commissioner of Internal Revenue. 

.Mr. ED~1UNDS. I see that; but it is Congress and not the Commissioner of Inter1;1al Revenue that is to decide whether money shall 

be paid out of the Treasury after this great lapse of time, and therefore I shall be glad to be convinced myself, instead of taking it ex cathed1·a from the Commissioner of Internal Revenue. 

The appearance of this case, briefly stated, is this: Durin rr the time 

of war taxes were imposed upon the express busines~, and there were in the city of Philadelphia and in New York ancl in almost every other 

city of any considerable size what were called baggage expresses. The 

' officerR of the Treasury compelled the owners of them to pay certain 

money upon their business as a tax upon the express business. Now 

it is stated that the Court of Claims has decided that that class of busi- ness did not fall within the statute under which these taxes were levied and paid ; and that having been decided, after a period of ten 

years or more, Congress is called upon to re-open the subject and-to 

refund those taxes that may appear to have been erroneously or illegally collected. 

In my opinion this is a subject that we ought to enter upon with 

the greatest possible reluctance and only in a case of the clearest 

illegality. The tax laws of the United States, like all other tax laws, are complicated, difficult of. application, whether they are customs 

duties or excise or internal revenue or whatever they may be. One 

Secretary of the Treasury, one collector of intemal re\enue will with 

entire intelligence and perfect uprightness hold that the law coveTS a certain class of business and that the taxes are to be paid upon it, 

while his successor will hold exactly the reverse, and his successor will go around to the first opinion and so on, because t~e laws are so vague, as in complicated cases they always have been in all coun- tries, that it is difficult for all men to see them exactly alike. But 

practically it almost always happens in the case of such laws that 

substantial justice is done and nobody in the community bears more than his fair proportion of the burdens of government. Now, to turn 

around upon nice discriminations, after the thing is all over, after the 

baggage-express people have got enough on their baggage to pay 

their taxes and make money besides, and upon some fine-spun doubt or distinction touching the meaning of the law to re-open the laws 

collecting taxes and the business _of collectint-r taxes ten years ago, 

i. , in my opinion, a very unsatisfactory piece of business. If you are to follow out the logic of that, there would scarcely be a single subject of taxation during the war or before the war or since that would 

not fairly fall within the province of the Commissioner of Internal 

Revenue under a bill of this kind if you would only enlarge it ac- cording to its own principles, and the Secretary of the Treasury and 

the other tax-officers of the United States to re-examine all the taxes 

th..'l.t have been levied in various ways and strike a fresh balance and see whether. too much had not been obtained. Of course, everybody 

would cry no to that at once ; and yet we are a ked in this way, if 

you take it up J!iece-meal, two or three cases at a time, to go back 

and split hairs over the statute, which substantially, as anybody can see, whatever a court may have decided, meant to cover this, which was an express business in fact just as much as .Adams Express or anybody else's. Substantial justice has been done, and substantially a just contribution has been made to the Treasury. Now we propose 

to invite the Commissioner of Internal Revenue to take the opinion 

of the Court of Claims as his guide, not the opinion of the Supreme 

Court of the United States; but t-o take an opinion in one case as his 

guide and try to apply that to the people named in this bill, and if he can :figure out a result against the Government, to pay them the 

money. For one I am opposed to it. 

Mr. MORRILL. May I ask my colleague if he thinks thn.t there 

could be any proper discrimination a-s to the kind of property carried 

in the express business which should exempt baggage rather than 

merchandise t I suppose the law levied a tax upon express business. 

Now is it possible that yon can exempt baggage any more than yon 

could other merchandise f 

Mr. EDMUNDS. The act of Congress on this subject is: 

That on and after the 1st day of April, 1863, any person or persons, firms, com- panie 1 or corporations, carrying on or doinrr an express bu ines 1 shall, in lieu of 

the tax and stamp duties imp{.lsed by existing laws, be subject to and pay a duty of 2 per cent. on the gross amount of all the receipts of suoh express business . 

I take it it would be perfectly clear that under the pra.vious stamp 

act every parcel they carried would have had to pay a stamp tax; 

but that was found to be inconvenient, and it was turned into a tax 

in gross upon gross receipts of 2 per cent.; and now, ;:tfter the statute 

of limitations has long since run against them. and the thing has gone 

by for a dozen years, it is proposed to invite the Corum is ioner of Internal Revenne to see whether he cu.nnot, in the light of Dodd's case, 

:figure out a result for the repayment of these taxes that were honestly and justly levied: and from which, as I should certainly ay, 

with great respect to the court1 very likely it will turn out that Dodd's case is entirely distinguishable. I do not know, but I should say, 

and I think everybody who hears this report read would say, this is 

just as plainly and in substance an express lmsiness a-s anything can be. It is the carriage of a part-icular class of parcels for hire, insuring them on their way from one place to another; and I am una- ble to see how it makes a difference whether you carry them from one railway to another in a city or from a railway to a house or hotel in 

the city, or whether yon carry them as .Adams Express doe , a part 

of the way by rail and a part of the way by ,wagon to your hou e or hotel in a city. I do not see how it is possible to put such a construction on the law . But here you propose :first to open the statute of limitations in favor 

of these claimants. In all other ca es, customs duties of every kind 

and internal taxes, the statute of limitations imposes a strict bar, and men stand upon their rights; and, if they. think they have paid any 

taxes that they ought not to pay, they commence their suit in the 

proper court in season, when the testimony respecting the particular · circumstances of the case and the application of the law is at hand. 

Now it is proposed, in the case of this particular cia s of busine sin 

the United Rtates during the war, to say, :first, that the statute of limitations shall not apply, and, second, that the Commissioner of Int.ernal Revenue shall reconstrue the law and be himself the jndge, and, 

if he can find that the United States have improperly construed that 

statute, then he shall give back the money. 

Mr. President, I hope this bill will not pass. 

Mr. 'VAL.L.ACE. I can only answer the argument of the Senator 

from Vermont against this bill by saying that here is a statute, which 

statute has been construed by the Commissioner of Internal Revenue 

himself as excluding this case and this class of cases. Now, it is not a question of construction to-day; it is a-question of what the officers of 

the Government construed the law to be long since. They construed 

it to be exclusive of this class of business, and in pursuance of that 

construction Dodd's Express Company and others made their claim. 

They were refused payment by the Department, and then they pro- ceeded in the courts, and they obtained a decree in favor of their 

claim. Thus we have the construction of the statutes by the decision 

of the courts; and now, having made the rule in these three modes, we came to this case that awaited the action of the Government itself; and, awaiting the action of the Government, the statute of limitations seems to have closed on the case. Because the parties did 

not sue, waiting the action of the Government, therefore t.hey ought 

not to have their claim! .A rule of law has been made by the Government, not during the war, but under a statute pas ·eel in 1 64, construed in 1870, which rule has been carried into effect as regards all 

the rest of the companies; and now, although the others have been 

paid, although it was just to pay them, it is not just to pay the e people who have waited! That is the argument of the Senator from Vermont in effect. It does seem to me that the statute of the Go-vernment, aud the construction of the statute by the Commissioner himself, and the decision of the courts upon this law and this ruling have 

settled, not what the law is to be now, butwhat the law was when it was made, and that rule of law is to settle and conclude all cases of 

the same chara-cter. .As these claimants are within this provision of 

the statute of 1864 as settled by the courts, why are they not within 

its justice and equity Y Is there any good reason why this claim should 

not be paid T Simply the statuto of limitations. The Senator rises 

in his pla-ce and interposes the statute. The Westcott·Express Company have got their claim; Dodd's Express Company have got their 
1876. CONGRESSIONAL RECORD-SENATE. 279. 

claim in pursuance of the statute, in pursuance of the construction, 

in pursuance of the decree of the courts; lmt time has elapsed, and 

therefore these parties are not to be paid! Mr. President, I hope they 

will be paid. . . Mr. SHERMAN. I should like to look at the Dodd case. It all depends on that. It may be that on reading that case we shall see the 

reasonableness of the decision. Let the bill lie over informally for 

the present. 

Mr. BAYARD. I have sent for the decision. 

Mr. EDMUNDS.. I ask for the yeas and nays on ordering t.he bill 

to a third reading. 

The yeas and nays were ordered. 

The PRESIDENT pro tempore. The bill will be laid over temporarily, if there be no objection, according to the suggestion of the Senator from Ohio. PHILIP PENDLETON. 

Mr. DAVIS. While the Senate is waiting for some information about 

the bill under consideration, I ask leave to call up House bill 735. 

There being no objection, the bill (H. R. No. 735) for the relief of 

Philip Pendleton was considered as in Committee of the Whole. It 

is a direction to the proper accounting officers of the Treasury toreopen and re-a-djust the accounts of Philip Pendleton, late a paymaster 

in the United States Army, and allow him such additional credits in 

the settlement of his accounts as, under the circumstances or in the 

opinion of the a.ccounting officers, may be just and equitable, for errors and losses of mopey received by him as such paymaster, if any, growing out of' shorts in package of money received by him, which shall 

be established before them by satisfactory evidence. 

Mr. EDMUNDS. Let us bear the report read. Th~ PRESIDENT JYrO tempore. The report will be read. 

The Secretary read the following report, submitted by Mr. CocKRELL, from the Committee on Military Affairs, on the 3d of July,1876: 

The Committee on Military Affairs, to whom was referred the bill (H. R. No. 735) 

for the relief of Philip Pendleton, have duly considered the same, and submit the 

following report: · The Committee on War Claims in the House of Representatives, on April 21, 

1876, made the following report: "The Committee on 'Var Claims, to whom was referred the bill (H. R. No. 735) for 

the relief of Philip Pendleton, report: "That a bill for the relief of Major Pendleton was reported favorably by the 

House Committee on Claims in the Forty.seconrl Conwess, and the bill was reported by Mr. Blair, chairman of the committee, and passed the House. {See Journal, 

third session Forty-second Congress, pa.ge 371.} 

" The bill went to the Senate, was not reached in that Congress, and the :papers were returned w the House files. In the last Congress the claim was agam pre- sented, and referred to the Committee on Military Affairs, but no action was had, as the papers were withdrawn by petitioner, on leave of the Honse, April17, 1874. 

" The report cannot be found on the files of the House, or with the papers. "It appears from the evidence that Major Pendleton was appointad a paymaster 

in the United States Anny in the early part of 1861, and served as such until the 

month of August, 1864. That, durin~ tl:iat time, he disbursed very large sums of 

money in payment of troops in West virginia, Illinois, Missouri, Mississippi, Kan- sas. Nebraska, Wyoming, and Colorado. Much of the duty performed was done 

under the most trying circumstances. He was in man:v instances (scarcely ever otherwise, according to the evidence before this committee) ordered to start at once on expeditions to pay troops without being given time to count the funds turned over to him. He was compelle<l to take the packages of money for the sums marked on them and receipt for such sums, as thus marked, without any opportunity of 

opening the packages and c·ounting the money to >erify their correctness before so receipting. In some instances the packages fell considerably short of the amount they were supposed to contain. Owing to the excitement of the times, and the 

continual and rapid changes from one place to another, Major Pendleton had no opportunity offered him to have these errors corrected. By the statement of Comp- troller Brotlhead, as well as that. of the claimant and others, it was notorious that 

many errors occurred in tho Treasury Department in putting up and marking packages of money; that such errors were inevitable and unavoidable by reason of the 

hurry of putting up the packages and the enormous business transacted at the time. 

Major Pendleton reported these errors to the Paymaster-General at various times, 

claiming that he had accounted for every dollar he had recei>ed, and that he was, by reason of the amounts receipted for by him, apparently behind in his accounts, 

when in fact be had not received all the moneys so receipted for. After the close 

of the war, Major Pendleton tried to have his accounts settled; the war excitement was then over, and the Department was not disposed to allow credits without the 

strictest compliance with law. Although he had reported deficits, he was held to his receipts hurriedl.v given. By the accounts, Major Pendleton appeared to be in· 

debted 14,374.50. 'l'he petitioner alleges and urges that there are errors in the account and settlement with t~e Secretary of the Treasury ~eatly to his injury, and prays for leave to have his accounts referred and re-adJusted by the proper accounting officers of the Treasury. . "Your committee, therefore, after a careful consideration of the case-the con- fusion of the times, the haste and emergencies under which the Secretary was forced to transact the business of his Department, and the risks and difficulties en- countered by disbursin~ officers in keeping their accounts, while in tho fielrl and on active duty, in a busmess-like manner-are of the opinion that Major Penilleton 

ought to be allowed the privilege of a resettlement of his accounts before the Secretary of the Treasury, and resuectfullyrecommend the passage of the accompany- ing bill as amended." · Your committee addressed a letter of inquiry to the honorable Secretary of the 

Treasury, and, through him, received an answer from the Second Comptroller, in 

which he says: · 

"In answer to tbe inq niries of Senator COCKRELL, I have to state that, Rhould the 

bill become a law, the action of this office would depend upon the evidence furnished. H upon examination of Major Pendleton's accounts under tll.is act there should be founcl a balance due him, payment could not be. made unless the bill is 

amended so as to carry with it an appropriation for the same." 

As this bill makes no appropriation of money, and only authorizes a re-opening and re-a?justment of his accounts, your committee recommend the passage of the 

House bill. 

The bill was reported to the Senate without amendment. 

Mr. EDMUNDS. I should like to inquire a little what the bill 

means. It says that this gentleman is to be paid such losses as shall 

be ,just and equitable in his accounts, and afterward it says growing 

out of shortages in packages. Now, if the bill means growing out of 

the fact that he is charged with more money than he actuaJJy re- ceived, that is one thing, and there would seem to be considerable 

force in it if it were not so long ago; but if it means that they are to tak6 hls accounts and allow for shortages in packages after he re- ceived them, then it appears to me that it would not be an extremely 

good bill to pass at any time. The language, it seems to me, is re- markable vague and somewhat mixed. If the point is merely to allow him as a credit such money as he can prove is charged to him 

that he never received, then, I respectfully submit, the bill ought to 

say so in very careful language; but if it is to allow the accounting 

officers of the Treasury to make a general guess over the whole period 

of his operations and allow him what was short in packages, which 

may have been in his possession for weeks before they were opened, 

and would still be an apparent "short" on his side in the packages, 

I do not think it would be right; and I doubt whether my friend 

from Missouri who reported the bill would think it to be right. I 

submit to him that the bill is rather extraordinary or rather loose in 

that respect. 

Mr. COCKRELL. The bill makes no appropriation. It simply 

authorizes the Treasury Department and the officers of t4at Department to re-open and re-examine this matter; and if they find on re- examination and re-adjustment that anything is due, they have no authority to pay it, but are to report the bets to Congress and then 

the whole matter will comf\ up before Congress. It was simply to give 

them the power to re-open and re-adjust this matter that this bill was reported. 

Mr. DAVIS. I' am not familiar with all the particulars connected 

with this case, though Mnjor Pendleton is a citizen of the State which 

I in part represent. The Senator from Missouri examined the case and 

reported the bill, which appears to have been carefully examined in 

the House, and the only object, as I understand, is that Major Pendleton may have his accounts re-adjusted. He thinks, as I understand, 

that the Government is indebted to him some portion of the $14,000 

which he and his sureties ha.d to pay, :1nd the object of the bill is to 

have a re-adjustment of his accounts. I think it just. 

The PRESIDENT p1·o tempo1·e. The morning hour bas expired. 

Mr. DAVIS. I hope this bill will be disposed of. . l\1r. COCKRELL. It will only take a moment to act on this, ancl 

I hope it will be continued. 

l\Ir: EDMUNDS. In order to make this bill clear according to what 

is stated in t.he report, that it is merely meant to cover, as it clearly 

ought only to cover, if you are to have paymasters responsible to all, 

overcharges of money to him that in fact never reached him, because 

the ostensible amounts in the pa.ckages were greater than the amounts 

really wore when he got them, I move to amend by striking out the 

words "equitable" and "errors and losses of," and to insert the words 

"true" and "charged as," and striking out the word " or" in the 

eighth line; so that it will rea.d: 

And allow him such additional credits in the settlement of his accounts as, under 

the circumstances, in tho opinion of said accounting officers, may be just and true, 

for money charged as received by him as such paymaster, and not in fact received. 

And then to strike out "growing out of shorts in package of 

money received by him." 

In that way you leave to the accounting officers but one single question, and that is the single question that the report of the committee 

of the House covers, that the paymaster claims and thinks he can show that the packages sent to him purporting to contain certain snms of money contained on sundry occasions less, so that he ought 

not io be charged with more money than he actually received. That 

is the uttermost extent to which I should be willing to go. 

Mr. DAVIS. I ask that the bill be read as it would be if amended. 

The Chief Clerk read as follows : · 

That the proper accounting officel'S of the Treasury be, and they are hereby, au- thorized and directed to re-open and rc.adjust the accounts of Philip Pendlewn, late a paymaster in the United States Army, and allow him such additional credits in 

the settlement of his accounts as, under the circumstances in the opinion of said 

accounting officers, may be just and true for money charged as received by him as such paymaster, and not in fact received, if any, which shall be established beforo 

them by satisfactory evidence. 

Mr. DAVIS. I make no objection to tho amendment. 

The amendment was agreed to. 

The amendment was ordered to be engrossed and the bill to be read a third time. 

The bill was read the third time, and passed. 

ORDER OF BUSINESS. 

The PRESIDENT JYI'O tempore. The morning hour has expired. 

Mr. BOUTWELL. Mr. President- . 

Mr. CAMERON, of Pennsylvania. I ask the Senate t,o take up tho 

resolution which I had the honor to offer yesterday in relation to a recess. I am desirous that the question shall. be decided now. I do 

not care to press the question particularly myself, but I think it had 

better be settled now, so that we can make our arrangements. 

The PRESIDENT p1·o tempore. The Chair win lay befm·e the Senate the unfinished business, which is the resolution relative to the 

Oregon electoral vote. - Mr. BOUTWELL. I will yield to the Senator from :Pennsylv-ania 

if the subject he wishes to call up does not give rise to debate. If it 

does I should prefer to ask the Senate to take action~-
280 CONGRESSIONAL RECORD-SENATE. DECEMBER 19·, 

Mr. MITCHELL. I desire to know if the Oregon resolution is the 

unfinished business T 

The PRESIDENT pro tempo're. It is. 

Mr. MITCHELL. I am willing to give way to this provided it 

does not displace the unfinished business. 

Mr. BOUTWELL. I yield to the Senator from Pennsylvania on condition that the subject does not give rise to debate. 

Mr. EDMUNDS. The yielding cannot be conditional. 

Mr. BOUTWELL. Then I mu.st hold the floor. 

Mr.CAMERON,ofPennsylvauia. Ratherthanhaveanydebatelwill 

withdraw at once. ·As I stated before, my only motive is to havo the 

question decided now. We have been in the habit for long years of a~jonming about this time to go home to our families, and it bas been 

understood everywhere that we would do so this year; but if there 

is any unwillingness to go now, very well. I can see no reason why we should not do now what we have done in former years; but I 

will make no contest about it. I only offered the resolution that the 

Senate might have the question before them and decide whether they 

will adjourn or not. I only a~k for a vote on it. 

Mr. BOUTWELL. I ask that the pending business be laid aside 

temporarily. 

The PRESIDENT pro tempo1·e. The Senator from Massachusetts 

asks that the unfinished business be laid aside temporarily. The 

Chair hears no. objection. 

STATUES OF WINTHROP AND ADAMS. 

Mr. BOUTWELL. Mr. President, I ask the attention of the Senate 

to the statues that have boon contribntecl by the State of Massachusetts to the old Hall of the Honse of Representatives. I ask, first, that 

the letter of the commissioners of the State to the delegation in Congress may be read. 

The PRESIDENT pro tempo1·e. The paper will be read. 

The Chief Clerk read as follows: 

COMMONWEALTH OF MASS.ACHUSETI'S, 

State Home, Bo1ton, July 10, 1876. 

.To the Hon. Senators and Japreaentativea of .Maaaach'UBet~ in tlte National Oongreaa: 

The undersigned, under the provisions of chapter 64 of the resolves passed by the General Court in the year 1872, were appointed a commi'!sion to procure from 

M888a.chusetts artists two statues in marble or bronze, to be erected in the Capitol at Washington, as the contribution of this Commonwealth to the National St.<ttuary Hall, in response to the invitation by Congress in the act approved July 2, 1864. 

The commission was directed to procure, in the manner before provided, a statue of Samuel Adams, and a statue of either John Winthrop, John Carver, William 

Bradford, William Brewster, Miles Standish, or Edward Winslow, as m1ght seem to them expedient, aa fitting representatives of the colonial and revolutionary 

periods. 

Under the direction of the re.qolve the commission contracted with Anne Whitney for a statne of Samuel Adams, and by virtue of the discretion vested in them 

they procured from Richard S. Greenough a statue of John Winthrop, first gov- ernor of the Massachusetts colony. Both the artists were uorn in Massachusetts, 

and both statues are in marble. 

Having been received and accepted. the commission has caused the statues to be placed in the Statuary Hall of the Capitol ready for presentation to the nation. 

The commission congratulate themselves that they are able to present the con- tribution of Massachusetts in the centennial yea.r of the events with which the fame 

of Adams is so inseparably connected and which were the natural and glorious 

fruitage of the labors, sacrifice, and doctrines of Winthrop and his contemporaries 

of the J>lymouth and the Massachusetts colonies. 

Havmg pro~essed thus fur in the discharge of the duty imposed upon us by the 

Commonwealth, we respectfully request you, its representatives in the national 

Congress, to call to the attention of that body the response of this State to its gra- cious invitation in such time and manner and with such formality as usage and propriety may seem to you to require and your good taste and judgment may com- mend. . And we subscribe ourselves, very respectfully and truly, yourobedient servants, 

. W. B. WASHBURN. 

HORACE H. COOLIDGE. 

JOHN E. SANFORD. , GEORGE F. RICHARDSON. 

ERASTUS P. CARPENTER. 

FREDERIC W. LINCOLN. 

JOHN B. D. COGSWELL. 

:Mr. BOUTWELL. Speaking for my colleague as well as for my- self, in behalf of the Commonwealth of Macj3sachusetts, and by the 

authority of its commissioners, we now present to the Senate and to 

the country the statue of John Winthrop, the father, founder, and 

first governor of the Puritan colony of Massachusetts; and the statue 

of Samuel Adams, the earnest advocate, and most logical exponent 

and defender of the principles of the American Revolution. 

The history of Massachusetts begins with the landing of the Pilgrims at Plymouth in the year 1620, and gathering as in one view all 

those who in the long period of two and a half centuries have contributed to the prosperity, asserted the liberties, defended the rights, 

supported the principles, advanced the honor, or extended the re- nown of that ancient Commonwealth, John Winthrop and Samuel 

Adams have been seleHed as most worthy of place in the illustrious 

group now assembling in the old Hall of the House of Representatives 

of the United States. 

The .first choice was made from the men of the colonial period of our history, and the second from the men of the revolutionary era. In the selection of a person to represent the. colonial period there was a difference of opinion between the descendants of the Pilgrims 

and the descendants of the Puritans ; but when the concession was made to the Massachusetts colony there was no difference as to the 

person entitled to the high distinction of the first choice, and John 

Winthrop stands as the representative not only of colonial Puritan Mas~::'chnsetts! but in his principles~ ideas, and purposes in govern-

\ 

ment he stands as the representative of the Commonwealth of Massachusetts as it has been, as it is, and as it ever must continue to be. 

The Pilgrims came to Plymouth to secure and enjoy religious freedom; the Puritans came to Salem and Boston to found o. Christian 

commonwealth and to extend a Christian civilization. 

The Pilgrims had a higher idea of the rights and dignity of man; 

the Puritans had a broader view of the power of Christianity in tbe 

public affairs and concerns of mankind. The success of tbe Pilgrims 

has been full and complete, not only within the little colony which 

they founded at Plymouth, but for all the English-speaking States of 

America. 

As religions lib(\rty is the basis of the higher and purer forms of 

Christian civilization, the Puritans were compelled, finally, to accept 

the leading idea of the Pil~rims as a part of their public policy and 

essentl.al to their nndertakmg. Thus the principles of the Pilgrims 

and the purposes of the Puritans were blended into a public policy of 

religious and political freedom and equality, dest!ned to be as extensive a~ the civilization and as enduring as the institutions of this con- tinent. 

In 1630 the Puritans in England were a class, but not a sect. They 

sought a better life, but they did not demand unity of opinion in 

religions affairs. Generally, they condemned the practices and ceremo- nies of the Church of England, but many of them accepted its creed 

and participated in its sacraments. 

Winthrop and his associates in their letter of farewell say we "esteem it our honor to call the Church of England, from whence we rise1 our dear mother, * * * ever acknowledging that such hope an<l 

faith as we have obtained in the common salvation we have received 

in her bosom." 

In 1630 the Puritans were a large minority, if they did not constituteamajority,ofthepeopleof England; buttheyhadnotthen sought 

power nor agreed upon a public policy. In 1640, ten years after Winthrop's departure, the great contest between the church and the Puritans, the king and the people, became active and the peril imminent. 

The people pro~ted against the Catholic and against the English 

Church. Fifteen thousand of the inhabitants of London and seven hundred clergymen of the established church asked that the powers 

of the bishops and the characLer of the ceremonies might be radically 

changed. These concession.s were made in form and to some extent in 

fact. 

Politicalc~anges in the nature of revolution followed. Strafford was executed, the court of high commission was broken·up, the Star Chamber was abolished, the judicial department was separated from the 

Crown, taxation by the king was relinquished, all ending in the \rial 

and execution of Charles I. 

The reign of English Puritanism was brief; but brief as was its ca- reer and sudden a~ was its fall, it left tra,ces of its inftuence and the footmarks of its power not only in England but in France, Germany, 

Switzerland, Spain, and the low countries, in theW est Indies and the 

colonies on the continent of America. 

The administration of Cromwell forms the most brilliant epocn in 

British history. Hea~vanceu the power and elevated the name of his 

country wherever it was known. His qualities as a statesman, soldier, 

and diplomatist were respected or feared in Western Europe and in the 

European settlements of America. His policy, compared with that of 

the past., was liberal and wise. He broke at once from the leaclingstrings of kingcraft and monopoly and put the government of England 

upon a more liberal policy, and prepared the people to receive more liberal ideas. But twenty years spent in strife, in civil war, in the 

discussion of questions of policy, foreign and domestic, had robbed 

Puritanism in England of its power a.s the advocate of a better re- ligion. 

Cromwell left England greater than he found it, and the England 

of to-day owes much to his administration; but the influence of the 

puritanism of the seventeenth century is no longer visible in the politics or civilization of that country. U.s moral power waa destroyed in the effort to establish its authority hy force. 

In the little colony of Massachusetts its authority was not questioned seriously, either in the church or the etate; and never on this 

continent did pritanism seek to propagate its opinions or gain power 

by arms. In one particular the Puritans have been misunaerstood. 

They accepted the truth that there might be a state without a king or a bishop, but they did not realize the kindred truth that t,here 

might be a stat-e without a church and a c:reed. They did not deny 

the right of private judgment in religious matters, but in their system of government the state and the church were one1 and whatever 

disturbed the peace of the church, in their view, also endangered the 

existence of the state. ll the otherwise fair fame of the 1\Iassachnsetts Puritans suffers from the charge of persecution, it is to be said 

in palliation, if not in justification, of their conduct that it was not 

their purpose to compel others to conform to their opinions, but to save their state from the dangers to which they thought it exposed. Of Winthrop even more might be said. In 1642, and in his capacity as governor of the colony, he received with kindness and gave aid and 

comfort to one La Tour, a Roman Catholic, who arrived at Boston 

from Rochelle, in France. His conduct was the occasion of severe criticism, but in his defense he says "If there were not other sins 

which Gi>d may have a controversy with us for, I should little fear 

any harm from this." 

But it can with truth be said of the Puritan colony and of its ad-
' 

• 

1876. CONGRESSIONAL RECORD-SENATE. 281 

ministration that the public-school system established \n 1642 is 

based upon the distinct assertion of the right of private judgment in 

religious matters. If we consider the public school as the only con- tribution made by the Puritans, it is in the fact and in the ideas 

which it embraces, the most important contribution to the human race ever made by any set or body of men. It is at once and always 

better security than can be otherwise obtained for freedom of opinion 

in all things, for equality of 1·ights in all the relations of life, for the 

diffusion of the spirit of justice, and a capacity for right-doing without the intervention of law, and at last for governments of the people, 

by the people, and for the people. 

I cannot doubt that John Winthrop is the most important :figure 

in American colonial history. His fortune in England wa.s ample to 

supply the wants and to support the house of a country gentleman. 

He was in the practice and in the enjoyment of the income of a.n honorable profession. When he identified himself with the colony and 

accepted the office of governor, the most important step, indeed the 

saving step, was taken in support of the enterprise. During the 

winter of 1629-'30 one-:fift.h of the settlers at Salem and Charlestown died of exposure and disease. The survivors did not number more than three hundred, and theso were broken and disheartened, 

and filled vi'ith the gravest apprehensions fo1· the future. Several of 

the settlements had been abandoned, and the very existence of the 

colony was in peril. Winthrop brought with him about one thousand 

persons, chiefly immigrants from Su:ftolk county, and they were re-en- forced in the next twelve months by at least a thousand moJ:e, 

These acces..'lions were from the educated, competent, self-sustaining 

classes. In six years, and in their capacity as a colony, they founded 

and organized the college :Lt Cambrid~e. In six years more they 

passed the memorable ordinance establishing a system of universal 

education which is in itself an effectual refutation of the exaggerated 

eulogy which Buckle has pronounced upon Adam Smith. In thirteen 

years after the arrival of Winthrop, upon his suggestion, and largely 

under his guidance, the colonies of Massachusetts, Plymouth, Connecticut, and New Haven entered into a union for mutual protection, 

w b ich was the type of the confederation and of the Union of the American States. 

Winthrop was governor twelve years of the nineteen years of his life 

in the colony, and there appear to have been but slight interruptions to 

his authority in the management of public affairs. His religious character and life, his devotion to the interests of the colony, h1s wisdom, 

his spirit of conciliation, his power of statement, and his rare ability 

in argument gave him the post of leader without a rival. Indeed, 

W aJJhington is not more exalted above his associates of the revolutionary period than is Winthrop above his associates of the coloniaL 

The statue of John Winthrop is the contribution of the State of 

Massachusetts. If the influence of his life and opinions and of the 

institutions which he aided in founding were limited to that Commonwealth it· would be an inadequate recognition of the value of his 

example. The little colony which Winthrop founded was the germ 

of a new civilization-a civilization whose chief force lay in ideas. 

These ideas have subjugated states, advanced across a continent, and are now in u.ctual contact with the older civilization of the Asiatic 

world. In the opinion that this new civilization is an improved civilization we can assert that other states and even other countries are bound with Massachusetts to recognize the services and to extend 

the fame of John Winthrop. 

Mr. DAWES. Mr. President, there has been no hesitation in the delay of Massachusetts to respond to the invitation of the nation to furnish for the old Hall of the House of Representatives, "statues of 

two of her deceased citizens illustrious for their hiRtoric renown or distinguished for their civic or military services and most worthy of 

such a national commemoration." 

It was no easy task for her to so execute this national commission as to command the approval of the present, and bear the test of future generations, as she turned for that purpose to the long line of 

her illustrious citizens who had closed lives full of immortal deeds, 

and conspicuous in history for the rarest virtues. 

It was only after much deliberation that she made her selection of 

the :first colonial governor of Ma.ssachusetts Bay, illustrious both as the founder of her civil polity and a.a the father of a long line of her 

citizens distinguished in ea~h successive generation for eminence in 

talent, virtue, and patriotism-and still most potential among her people for all that is good and worthy of renown-and with him one, primus 

inter pm·es among those great leaders who, a century and a half after 

herPuritangovernor,gnidedthatcolonyandhertwelvesistersthrough 

revolution to free and independent States and to their position as one among the nations of the earth. Massachusetts accordingly presents 

this day to the nation, to be preserved among those of the illustrious 

dead of her sister States, in that old hall, itself immortal, the statues 

of John Winthrop and Samuel Adams, the one :first in her colonial, 

and the other first in her revolutionary history. In the discharge of 

the agreeable duty thns imposed by her upon her representatives here, 

it has faJlen to my lot to speak of the character of Samuel Adams. 

He wa.s born in Boston on the 16th of September, 1722,0. S., .in the 

third generation, in direct line from that John Adams who was the 

great-grandfather of the illustrious patriot and citizen bearing the 

same name, the second President of the United States. In 1736 be 

entered Harvard College, and graduated in regular course in 1740; 

commenced, but did not pursue, t4e study of the law, entered a counting-house and adopted mercantile business for his pursuit in li.fe, from 

which, however, he was early turned by the stirring events tlestine<l soon and completely to absorb his whole being and control his whole 

future. He was twice married; :first to Miss Elizabeth Checkly, and 

afterward to Miss Eliza.beth Wells. By the former he had five children, only one of whom survived him. He died in the town of his 

birth, M he bad always lived, in poverty, October 2, 1803, at the age 

of eighty-one years. 

Such is the simple and naked record of his birth, life, and death, 

carefully and tmostentatiously traced, as is the custom of the New 

England family, in the Bible that comes down from father to son, 

preserving between the books of the Old and New Testaments the 

genealogy of the families through which it passes, and whose religious character it feeds and supports. 

If from this simple page we turn to the story of his life, it will bo 

found to have been one of the most eventful, influential, and positive 

of all the lives of the great men who, under Providence, molded and 

determined the destiny of this ..nation, out of small beginnings, 

through feeble instrumentalities, and sometimes by mysterious agencies, but at all times by a wisdom and foreca-st, by a consecration and 

sacrifice little short of superhuman. 

As his life began, so did his work, earlier than that of any of those 

who worked wHh him to the :final consummation. As ea,rly as 1743, 

thirty-three years before the Declaration of Indepepdence, and when 

the surface of absolute British rule on this continent had not as yet 

been ruflled by the slightest breeze of popular discontent, on the occa- sion of his master's oration at college, he, then just entering on his 

majority, disturbed the repose of the colonial governor and his subservient council by maintaining the thesis that ''it is lawful to resist 

the supreme magistrate if the commonwealth cannot be otherwise 

preserved." Thus early in his own life and earlier in that of the nation 

he helped to create, for it was before the reign of George III had begun, while Washington and John Adams were mere children, and 

Jefferson was a.n infant just born, did Samuel Adams, with a forecast 

then all his own, prepare the way for coming events whose shadow 

had not yet appeared. The spirit of the Revolution seemed to have 

been born in hiin and to have been cherished as a passion from his 

infancy. Yet he was the most patient of men and aw~~ited its development in others with the calmness and faith of a pl.'ophet. 

The :fire and zeal of the youth were held in check by the wisdom 

and prudence of maturity. He took on that day only the first step, 

the sa~red 1-igltt of revolution. But it was a step taken, taken firmJy 

and intelligently, and thereafter maintained against all comers. From 

that day be seems to have consecrated himself to this new mission. 

Scarcely a trace of him remains elsewhere or in any other pursuit. 

An ineffectual effort at tho bar, an unsuccessful mercantile venture, 

and all the rest of . that remarkable life was one harmonious growth 

and wonderful development of the germ which that day put forth its 

:first sign of life. And how marvelously it took root and grew in that 

genial soil! Though beset on all sides with discouragement and obstacles, confronted with opposition and loaded with obloquy, in perils 

often from open foes and among false brethren, yet his heart never failed him in his work, and never for an instant did he give over effort 

till the :final and glorious consummation gladdened his eye and rav- ished his soul. 

Nevertheless, for thirty long years from that (lay it was mostly a work of preparation, ripening only by slow progress and at an almost 

imperceptible pace into organization, leading ever, though not al-. ways by the open way, to that actua.l resistance from which there 

could be no retreat, and whose successful issue he never doubted. 

These were the most remarkable and eventful years of his life, and 

of the life of any American save Washington yet born. Indeed every 

hour of revolut.ionary research makes it more and more apparent that 

had there been no Samuel Adams, there had been no Washingtou. 

The Father of the Revolution must needs precede the Father of his 

Country. 

In his work he was not always understood and was often misunderstood, but be stopped not to explain and wasted no time or strength in vindication. 

Recognized by the unerring instinct of the people, from the moment 

that. progress ceased to be silent and unseen and tho gathering forces a ~sumed order and direction, nnappointed and without other commiasion than comes in great emergencies from commanding talent, un- faltering faith, and cloudless vision, he stood at all times at the head 

of the column pointing the way. He constantly encouraged the wavering, urged on the bold, and dispelled the clouds that darkened the 

path, till the surcharged elements of revolution broke with. the clash 

of arms on the 19th of April, 1775. 

ln the early mornin~ of that day, forewarned, he left, in company 

with John Hancock, h1s retreat in the town of Lexington as the approaching tread of pursuing soldiers was heard in the distance. But 

the hour of resistance had come and the curtain seemed for a moment 

to lift from the future, and its coming glories to open before him. 

Turning toward the first gray of the morning, as it began to light up 

the ea-stern sky and direct their unattended footsteps, he exclaimed 

to his companion," What a glorious morning is this." 

In that period of his life which preceded the open outbreak of hostilities there can be no doubt, I think, that his most important work was done. On this his fame will in the future rest. As its difficulties and complications, its delicate and doubtful methods, its inces-
• 

282 CONGRESSIONAL RECORD-SENATE. DECEl\fBER 19' 

sa.nt labor and sleepless vigilance, all dominated by one great idea, 

and pressed forward with an unflinching courage, shall come to be 

better known by the student of the causes and instrumentalities of 

which the Revolution was born, so will its luster constantly increaae. 

No adequate sketch even of that work can be attempted here. 

Bancroft has truly said thatIt is impossible to write the history of the American Revolution without the cb ar- acter of Samuel Adams, and it is impossible to write the life of Samuel Adams with- out giving a history of the Revolution, for he was the father of the Revolution. 

A bare outline would extend these rema1·ks beyond justifiable limit, 

and only a few prominent points can be touched upon in years crowded 

with efforts the most efficient, well directed, and successful in awakening, educating, organizing, and inspiringthe spirit of the Revolution. 

He had scarcely attained his majority l'lJld stirred the blood of his 

mlers by the" incipient treason," as it was called, which lurked in his 

last college effort, when, recognizing the press as the most essential 

and efficient instrumentality in any great work dependent npon the 

popular will, he induced a few of his political friends to form a club 

for the special consideration of public affairs. By writing and debate 

and the establishment of a newspaper he endeavored to disseminate 

among the people the opinions and discussions of this club. The Public Advertiser, whose first number was published in Boston, January 

1, 1748, thus became the organ of the .first political association in the 

colonies for the promulgation of those principles which led in after 

years to the American Revolution. 

Samuel Adams was the leader and master spirit among this bold 

and efficient band of pioneers. He was henceforward a most able political writer, not only for this paper, but. in the columns of every other 

paper in New England to which he could gain access, and over a great 

number of different signatures, that he might not appear to the people to be working single-handed, but as one of many able and cogent 

writers upon subjects every hour pushed home to the public conscience 

and judgmeut with increasing force. His political writings during 

this period would, if it were possible to rescue them from oblivion, fill 

many volumes and would now be of immense value to the student of 

political history and to a just estimate of the men and measures of 

that epoch. But from various causes the larger part of this invaluable treasure has been lost. 'l'he great variety of names under w bicb 

they appeared from time to time, and the necessity of concealment to 

the personal safety o~tbeir author growing more and more an object 

of anxiety and care as troubles thickened, and the carelessness of subsequent custodians having no conception of their value, have all con- tributed to the loss of a large part of the writings of the ablest political philosopher and statesman of that critical and important period. 

But enough of them have surYived aU the casualties which their 

author's fu.me encountered in revolutionary times to justify the high 

estimate w bich the future generations of the Republic are sure to put 

upon them. 

It was the wont of the towns in the Massachusetts Province to fur 

nish their representatives to the general court with written instructions, some of which were very elaborate and able. Those for the 

year 1764 from the town of Boston were from the pen of Mr. Adarp.s, 

and were remarkable for the boldness with which new ideas were enunciated and the mea..sures suggested for their maintenance. Says 

:Mr. Adams: 

We therefore, yom constituents, take this opportunity to declare our just expec· 

tations of yon that you will constantly use lour power and influence in maintaining the invaluable rights ani\ privileges o the province of which this town is so great a part, as well those rights which are derived to us by the royal charter as those which, being prior t() and independent of it, we hold essentially as freeborn subjects of Great Britain. 

And the instructi'ons conclude with this, in the light of sul)sequent 

events, most import.ant suggestion: · . 

As His Majesty's other North Amexican colonies are embarked with us in this most important bottom, we further desire you to use your endeavors that their 

weight may be added to that of this province, that, by the united application of all 

who are aggrieved, all may obtain redress. 

This was in 1764, ten years before the first meeting of the .colonies 

in Carpenter's Hall in consultation for the common welfare, and is 

believed to be the earliest suggestion of the Uuion through which all our glories have arisen. Ill the next year he held the general court 

of the colony up to resolve "that there are certain essential rigQ.ts of 

the British constitution of government which are founded in the law 

of God a:q,d nature, and are the common rights of mankind;" and 

"that the inhabitants of this province are unalienably entitled to 

these essential rights in common with all men, and that no law of 

society can, consistent with the law of God and nature, divest them 

of these rights." . . These now fundamental doctrines of our polity were then so new that they "startled the whole provice," and we are told that they 

were received in England as tho "ravings of a parcel of wild enthusia..sts." , . His pen was constantly active in all the following years, feeding 

the growing popular excitement and leading the public mind and 

heart unconsciously for a time, perhaps, but stea<lily and step by step 

up to the one great act from which there could be no retreat with life 

and honor. 

In 1768, Mr. Adams prepared the celebrated letter of instructions 

from :Mas achusetts to her agent in London, which was published in 

England as the "true sentiments of America," and also a-ddresses in 

tbe name of that colony to the ministry and tothefriends of America 

in the mother-country, and a circular letter to each legislative as- sembly on this continent. Thus all along, and almost in the same breath, did be exhort and encourage the people at home, enlighten 

and remonstrate with the Government abroad aud appeal to the sistercolonies for union in resistance. As early as this year, eight years before the final declaration, Mr. Adams became convinced that the policy 

of Great Britain toward the colonies was unalterable and that independence or slavery was the alternative before the Anglo-Saxon race on this continent. He did not hesitate himself nor for a moment don bt 

the choice of tpe people, so soon as they should see clearly as be diu 

that the choice must be made. From that hour, more or less openly 

and positively, but never faltering or retreating, he addressed himseif 

to the removal of all doubts and to the clearing of the mists from all 

visions. How far in advance of aU others he was in this great work 

those can judge who remember that John Adams and Jefferson for 

years afterward were laboring for a solution, short of separation, of 

the questions which bad arisen between the mother-country and her 

colonies, and.Washington himself confessed, only two months before 

the DeclaratiOn was adopted, that when he took command of the 

Army, July 2, 17751 be" abhorred the idea of independence." 

When the massacre of unarmed citizens in the streets of Boston 

by British troops quartered in town by a cowardly governor had 

aroused the people to a pitch of excitement bordering on madness 

and had crowded the Old South Church with an a-ssembly of men burning with indignation1 Samuel Aclams was put at the bead of a commi~ee to demand a"am of the governor in tho name of an outraged people, a removal of the troops, which that morning he had 

refused to the town authorities. The meeting in solemn silence 

awaited the result of the mission with intense anxiety. The first 

report that one regiment might be removed had been met by a re- sponse from three thousand voices, making the very roof of that 

venerable edifice to shake, that every soldier mm;t depart. 

Mr. Adams, at the head of a new committee, returned to deliver to 

the quaking governor this response. The scene in the council chamber where he presented to tl1e governor and the commanders of the 

regiments the reply of the meeting is the most impressive scene of 

all the Revolution. The orator stretching forth his band, like Paul 

before the trembling Felix, said: 

It is the unanimous opinion of the meeting that the reply to the vote of tho inhabitants in the morning is by no means satisfactory; nothing less will satisfy 

them than a total and imme<lliite removal of the troops. If you have power to remove one regiment, you have power to remove both. It is at your peril if you 

refuse. The meeting is composed of three thousand men. A thousand men are alrea.dy arrived from the neighborhood, and the whole country is in motion. Night 

is approaching; au immediate answer is expected. Both regiments or none! 

There was no mistaking this determined spirit, and the gover~or, quailing before it, gave the order for the removal of the troops. 

The artist ha..s chosen for reproduction in marble, from among all 

the eventful scenes in the life of this remarkable man, the moment 

of the utterance of these words, the reply to which was awaited by 

Mr. Adams, calmly, with folded arms and with compressed lips and 

firmly knitted brow. And to all coming generations, while one stone 

shall remain upon another around that historic Hall, shall this marble 

thus commemorate the courage and heroism to which British authority 

fu-st surrendered on this continent. 

' But in the years that immediately followed the great power of Mr. 

Adams as a leader of the people wa-s eYen more manifest than when· 

he appeared, in the morning of that eventful day controlling the tempest of popular passion in Fanenil Hall and tho Old Sooth Church, 

and in the evening confrontino- and overawing royal authority and 

insolence. Great depression followed this intense excitement. Reaction had set in and the people had begun to falter. Elliott said that 

"it mi~ht be as well not to dispute in such strong terms the legal right , of Parliament." James Otis, jealous of Samuel Adams, placed obstacles 

in his way, and even John Adams, retiring from the Colonial Legislature as if to private life, ceased to write in the cause, "disgusted with 

the apparentsubsidenceof the patriotic spirit." The Legislature itself, 

abandoning the lead of .Adams, followed that of the doubting and hesitating, and he was left in a minority. The loyalists were exultant 

and the patriots disheartened. Then the resolute soul of this great man lifted him to the height of the occasion, and with pen and voice 

and personal argument, mid obstacles almost insurmountable, he kin~ 

dled afresh the fires of the Revolution and inspired with new animation and hope and courage the desponding spirit of patriotism. 

The people rallied, the dead-point wa..s passed, and the danger was escaped. A weak man may ftoat with the current, a stout one only 

can stem it. 

From this time forward he labored incessantly for union, as in one common cause, of all who complained of despotie rule; first fora generalleague of Massachusetts towns, and later, as the cause broadened, in an earnest and formal call for a Continental Congress. 

In March, 1774, more than two years before the immortal Declamtion, in the spirit of prophecy be wrote to Arthur Lee, jn England, 

that by persistency of the British government in its course "will be 

brought to pass the entire separation and independence of the colonies." 

Hutchinson had, nearly a year before, reported him to Lord Dartmonth as the chief incendiary, "determined to get rid of every gov- ernor obstructing their course to independency." 

He stands out in the history of the progress of the ~reat struggle, 

not only as among the very earliest in resistance to British aggression, 
1876. _CONGRESSIONAL RECORD-SENATE.· 283 

but the first to see the futility of all attempts at compromise, and 

to proclaim that the hour for separation had come. He moves in the 

Colonial Legislature the appointment of delegates to a Continental 

Congress in Philadelphia. The royal governor in alarm attempts to 

dissolve the assembly, but the door is locked in his face and the key 

is in the pocket of Mr. Adams. His leadership was as well nuderstood in England as at home, and it won for him with Hancock the 

immortal distinction of being exempted by name from an otherwise 

general offer of pardon upon submission to royal authority. In all 

the sessions of the Continental Congress be was, a.s at home in Massachusetts, a leader in counsel and in labor, guiding constantly toward 

and striving ever to reach that day when formal and irrevocable 

proclamation of independence could be made. 

He bore a most conspicuous part in the final production and adoption of that great instrument, and affixed his name to it as the fruition 

of years of prayer and struggle. 

He returned to Massachusetts as poor as when contributions from 

unknown sources bad furnished the very clothes which he wore in 

Philadelphia. And yet he had scorned the tempter with the gold and 

the peerage of England in his hand. Incessant devotion to the public 

service and entire consecration of every energy to the cause of his 

country had wrourrht nponhim poverty and need. He found himself 

without even the shelter of a roof be could call his own. He struggled 

with his necessities as best he could, but failed in his advanced age to 

better his fortunes and continued to the end of his life to lack many 

of its comforts. 

But he could not be kept from the service of the people, and en- tered at once into that of his native State, first as president of its sen- ate and later as its governor for three successive terms, and retiring 

only under the burden and at the command of advancing age. 

Mr. Adams was thoroughly democratic in all his instincts and faith. 

His trust in the people was implicit and unbounded. His political 

education and his early training as a statesman were in the New England town-meeting the nearest approach to the ancient democracy 

of any modern polit.ical institution, and largely through it he ha<l seen wrought out the wonders of the Revolution. Therefore that form of 

government for the future States which was the nearest approach to 

the democratic ideal won his warmest support. He accordingly, with 

others of the same school, shrank from the present Constitution and was opposed to its ratification by Ma-ssachusetts as too centralizing 

and as cramping the powers and functions of the States. It was only 

when that ratification was to be accompanied with proposed amendments, giving further guarantees to the liberties of the people and 

powers of the States, that he finally saw his way clear to advise its 

adoption by his native Commonwealth. 

The sincerity and weight of that advice contributed much t.o the 

ultimate adoption of that instrument not only by Massachusetts but 

by a sufficient number of her sister-States also to make it ultimately 

the organic law of the land. 

This tendency of his mind led him directly, in the division of the 

country at the end of Washington's administration into parties upon 

the different rules of construction of the Constitution and consequent 

differences in policies of administration, to take the side of J efterson 

against his own kinsman and co-laborer, John Adams. 

Age alone prevented him from becoming a member of Jefferson's 

first cabinet. A temporary estrangement between the two Adamses 

followed this political divergence. It was, however, soon forgotten, 

and the Ex-President, surviving his elder compatriot many years, never stinted his appreciation and commendation of that undischarged debt 

this nation owes to him who was leader in all the great works of the 

Revolution. 

.Mr. Adams died at the age of eighty-one, in the fullness of his years 

and with his work and fame complet-e. As they pass in review at 

the end of the century which their crowning glory ushered in, how 

grandly they stand out, foremost iu the front rank! His was a great, 

and will ever remain, a historic cbara.cter, indissol11bly linl:ed with 

every critical, decisive, or ~lorious step in the progress of the Revolution, from the feebleness of its inception to the grandeur of its con- summation. All his life-work led him through ways hitherto un- marked by the footsteps of the statesman and beset with perils, and 

be walked under a. burden of responsibilitjes few if any others ever bore. On a singlo misstep hung the life of the nation; yet, in that 

wisdom and forecast, that boldness and strength, that power at his 

will alike to inspire and restrain, to stir the popular heart and to hold 

it in check-essentials all to the success of the great work on handhe had no equal among the chiefs of the Revolution. 

Ma sachusetts has been slow in doing honor to her illustrious son. But if she comes late to a public manifestation of her gratitude and 

appreciation she has chosen well the manner and the ~ccasion. At 

her command, one of her own artists, a lady of rising fame and great 

promise, has with marked success reproduce(], in imperishable marble, 

the stately form and commanding features of the great popular leader. 

One hundred years in the history of the Republic be contributed so much to create have been numbered, and now his native Commonwealth is proud to bear witness at once to his love for her and to his 

greater love for the nation of which she was forever to be a part. Today, in aclpwwledgment of a debt that can never be di charged and 

full of pride in the name and fame of Samuel Adams, Mas acbusetts 

presents his statue to the "Qnited States, to be kept in perpetual trust as a memorial of her gratitude and a pledge of her fidelity to the cause of self-government, to which his whole life was consecrated. 

Mr. INGALLS. Mr. President, I offer the resolutions which I send 

to the desk to be read. 

The resolutions were read, as follows: 

Resolved by the S~nate, (the How;eoj Representatives concurring,) 1. That the stat- ues of John Wmthrop and Samuel Adams are accepted in the name of the United 

States, and tha.t the thanks of Congress are given to the Sta.te of Massachusetts for 

these memorials of two of her e!lliDent citizens whose names are indissolubly asso- ciated with the foundation of the Republic. 

2. That a. copy of these resolutioDS, engrossed upon parchment and duly authenticated, be traDSmitted to the governor of the State of Massachusetts. . 

· Mr. INGALLS. There have been citizens of Massachusetts more illustrious for their historic renown, or from distinguished civic and 

military services, than those whom she has chosen as worthy of this 

national commemoration. 

The stranger who pauses before the memorial marules in future 

years may forget that Sumner and \Vilson had so lately departed 

from this Chamber that they could not become competitors for admission to that silent society of fame; but he will remember that our predecessors had heard the majestic periods of \Vebster, and tho gorgeous rhetoric of Choate and Everett; that upon the floor he treads 

had fallen "the old man eloquent" at the close of a memorable career. The effigies of the revolutionary heroes around him will re- call the memory of Hancock, the first signer of the Declaration of 

In<lependence, and of Warren, who died at Bunker Hill; while against 

the dark and stormy background of the desolate colonial epoch will 

appear in dim procession the names of Bradford, Winslow, and Miles 

Standish, and be will ask why the old Commonwealth turned away 

from these conspicuous sons, and selected for this perpetual, enduring, 

and eternal honor, as the representatives of her birth and growth; 

the exponents of her purposes and her convictions; the apo8tles of 

her mission and the prophets of her destiny, these less illustrious citizens-John Winthrop and Samuel Adams. 

The race to which we belong is characterized by resistless energy. 

Descending the slopes of the great central Asiatic plateau in prehistoric times, it has moved westward through Europe by some mysterious impulse, subverting empires, displacing populations, substituting languages, imposing new policies and institutions, and giving rise 

to an organic series of nat.ions which have succeeded each other like 

the annual harvests of the earth. It was not till the seventeenth 

century that this great column in its prodigious migration reached 

the shores of America, and founcl here for the first time in its eventful march an unlimited field for unrestricted growth and development. To an unoccupied continent, whose river-valleys and mountain ranges compel national unity, it Lrought the ideas which it has 

preserved amid all vici8sitndes ; ideas whose vigor had successfully · resisted the modifications of climate, soil, and physical conditions ; 

which bad defied repression, and when restrained by power too great 

to be overcome had preferred deserts and inhospitable solitudes rather 

than enervating submission to tyranny. Refusing to adulterate ita 

blood with inferior races, it had not degenerated nor lost its intellectual methods and traditions. It loved to make laws an<l then to ren- der obedience to them. It preferred charters to the sword. It was profoundly religious and expressed its faith in solemnities and creeds. 

Since the Christian era there have been no great political move- ments that have not had their impulse in religious sentiment. The 

idea of a Messiah has preserved the national existence of the Jews 

during two thousand years of persecution, and of dispersion to the 

uttermost parts of the earth. The dogmas of Mohammed changed the 

destiny of three continents. The protest of Luther against Romanism gave direction to the whole current of modern history. The 

Reformation gave the Commonwealth to England and the Puritan 

to America . Foremost among these pioneers was John Winthrop, a voluntary 

exile, seeking unrestricted liberty of conscience. The little commu- nity that gathered around him necessarily a-ssumed political relations. 

The idea of personal freedom and independence permeated the fabric and became its controlling impulse. As new colonies crossed the 

sea, the necessities of defense compelled an association upon the same principle, and when at last the exactions of England grew 

again to be intolerable, Samuel Adams became one of the apostles of 

the political gospel that all men were created equal. 

In the interval that ha.s followed the final removal of exterior obstacles the ideas of Winthrop and Adams have advanced with inexorable vigor, subduing a continent for their habitation, and molding with despotic sovereignty the institutions and laws of forty millions of men, It has been said that the Puritans came to America to 

worship God according to the dictates of their own consciences, and to 

compel everybody else to do the same. Whether this bo true or not, 

it is certain that the political syst-em ba-sed upon the ideas of Winthrop and Adams has been inflexibly aggressive and intolerant. 

During the early years of the Republic it regarded with increasing discontent theadvanceof human slavery. Its opponents were not warned 

in time. DemocTacies aro generous but they are jealous. They en- dure much but when they are wrongedtheysometimes take more than 

their due. When dissatisfaction assumes the form of resentment, one volume of a nation's history is closed and another is opened. The irrepressible conflict was proclaimed and the contest waged 

with increasing intensity. Political complications deferred the crisis 

till the issue was precipitated upon the plains of Kansas, and John 

Brown of Osawatomie there raised auew the standard of universal 

fi·eedom under which he marched to Harper's Ferry, and which the 

nation seized at the gallows of Charlestown and bore in triumph to 
28-1 CONGRESSIONAL RECORD-SENATE. DECEMBER 19, 

Appomattox Court House. Whatever may be said of the policy or ex- pedience of these great movements, history will not fail to record that 

those who inherited the political principles of 'Vinthrop and Adams were inexorably logical :1Jld courageous, and that they shrank from none of the consequences of their convictions. They were not only 

determined to be free themselves, but that all who were accessible to 

their influence should be free also whether they wanted to be or not. 

They promptly relinquished the rights of conquerors, and admitted 

the vanqnished to the full exercise of unrestricted citizenship. Following their doctrines to their logical conclusions they made citizen-· ship national; they enfranchised the illiterate millions who had been 

reJieved from bondage and intrusted them with the ample prerogatives of freedom. It was a terrible experiment. Self-government was never subjected to such a stress before. Whether it will survive 

the shock remains to be determined. The portentous emergency that 

confronts us to-day is one of its inevitable results, and it wtll require 

the active co-operation of all the higher forces of society to prevent 

destructi'Ve organic changes. 

The tendency of the democratic idea in America. has not been destructive as in other countries. It has not striven to tear down, bnt 

to construct and build np; to repair and not to waste. It has always 

exhibited an impulse toward the coalition of all its elements. 

Whether in the feeble days of the colonies or the succeeding era of our growth and glory, this instinct basal ways been visible and it has 

developed into a purpose whose conservative and beneficent influence 

cannot be overestimated, not only in the present but in all future 

crises that may threaten the nation. This purpose is national unity, 

the determination that the United States shall be a great continental 

Republic, powerful and indissoluble, offering a refuge and asylum 

to all who love liberty, and sovereign among the nations of the world. 

To realize thiRsublime conception incredible sacrifices have been made. 

Personal rights for a long period were cheerfully surrendered. Armies 

and navies have been organized for military and naval operations 

commensurable in magnitude with the great fields upon which they were conducted. Hundreds of thousands of lives have been sa-crificed 

andhundreds of millions of treasure expended to establish the national 

integrity. It is not too much to say that this purpose is so deeply 

imbedded in the convictions of the American people that it can never be abandoned. It has cost too much to be peacefully surrendered. 

We are now in a transition period. We have acquired a habit of 

subordination, and may confidently anticipate the acknowledged su- premacy of law. 

In view of these considerations, this interruption of the proceedings 

of the Senate in the presence of questions of momentous interest ceuses to be inopportune or formal. It is an admonition of profound 

significance. Massachusetts tur»s from her warriors, her statesmen, 

her orators, and acknowledges her supreme allegiance to those potential ideas which for two hundred and fifty years have defined the path 

of her progress. She announces that against the temptations of policy or place or expediency she shall recognize morals as an element in 

politics and the golden rnle as a maxim of government; that in the 

future as in the past she wi11 insist upon national integrity, equality 

before the law, universal education, the elevation of the masses, the 

}_'lrotection of labor, the promotion of the material interests of the 

country, and the continued activity of those great moral forces which 

underlie true national grandeur. 

I move the adoption of the resolutions. 

The resolutions were adopted unanimously. 

1\IESSAGE FROIII THE HOUSE. 

A message from the House of Representatives, by Mr. GEORGE M. 

ADAMs, its Clerk, announced that the House had passed the following bills and joint resolutions; in which it requested the concur- rence of the Senate : A bill (H. R. No. 2606) for tlie relief of Catherine Harris; 

A bill (H. R. No. 4188) making appropriations for fortifications and 

for other works of defense, and for the armament thereof, for the fiscal 

year ending June 30, 1878, and for other purposes; 

A bill (H. R. No. 4246) t.o provide for the holding of terms of the 

district and circuit courts of the United States at Bay City, Michigan; 

A bill (H. R. No. 4248) for the relief of Emanuel Klauser, late cor- poral of Company H, Fifty-fourth Regiment Illinois Volunteers; 

A joint resolution (H. R. No. 174) authorizing the issue of clothing t~ Private Patrick Noonan, CompanyG, Fifth United States Infantry; 

A joint resolution (H. R. No. 175) authorizing the issue of clothing 

to Company A, Second Regiment United States Cavalry; 

A joint resolution (H. R. No. 176) authorizing the issue of clothing 

to Private Francis Hegner, Company F, Sevent.h Cavalry, and Private 

John C. Collins, Company G, Seventh Cavalry; and 

A joint resolution (H. R. No. 177) authorizing the issue of clothing 

to Sergeant Herman Theune, Company I, Twenty-third Unit-ed States 

Infantry. 

The message also announced that the House had passed a concur- r ent resolution for the printing of 4,000 copies of the report of R. W. 

Raymond on mining statistics for 1875, with the accompanying en- gravings, in which the concurrence of the Senate was requested. 

ELECTORAL VOTE OF OREGO~. 

Mr. MITCHELL. I call for the regular order. 

The PRESIDING OFFICER, (Mr. WRIGHT in the chair.) The regular order is called for, being the resolution directing an inquiry as (I 

to the eligibility of J. W. Watts aa an elector for the State of Ore~on 

and the circumstances attending the appointment of electors in tnat 

State. 

Mr. MITCHELL. Mr. President, this resolution has been under dis- c esion from time to time for something over one week. I have made no particular effort to bring it to a vote, lJut I trust the Senate, if the 

diacnssion is through or if it can be finished within any I·easonalJle 

hour to-day, will remain until a vote is taken. I consented that the 

matter might go over yesterday from the fact that the Senator from 

illinois [?tu. LOG.L"'i] desired to speak, and I was very anxious to have 

him apeak. He is still laboring nuder physical disability and is un- able to be here. So far as I am concerned, I intend to take but very 

little time in addition to that already taken. There are a few things, 

however, to which I desire to call the attention of the Senate in 

reference to this matter before the vote is taken, and I allude particularly to the statement made by Governor Gro'Ver in justification of his 

action in regard to the certificates that were issued to presidential electors in Oregon. 

It is not often that a judicial officer or a person acting legitimately 

in a judicial capacity feels constrained, after he has rendered his decision and delivered his opinion, to come out in a card in tbe public 

papers and give reasons in justification of his course. It is perhaps, 

however, not so strange that when a ministerial officer, clothed solely 

and purely with ministerial powers transcends his plain and explicit 

commission and assumes judicial functions, exercises judicial functions, passes upon rights, adjudicates upon questions, he should feel 

called upon. to come out in a card over his own signature and give reasons for the action taken by him. That seems to be the case in this 

particular instance. I hold in my hand what purports to be, and 

which I have no doubt is, a card over the signature of Governor Grover, 

of Oregon. It is published in the New York Herald of the 8th of December, and it is to some extraordinary statements in that card that I 

desire, before a vote is taken on this resolution1 to call the attention 

of the Senate very briefly. Governor Grover rn that card uses this 

language in part justification of his course : 

That instrumentReferring to the Constitution of the United Statesdeclares that no person holding an office under the United States Rhall be an elector. 

J. W. Watts, one of the electors voted for in Ore~ron, was on the 7th day of Nonmber holding an office of trust and profit under the United Statos, to wit, 

postmaster at LaFayette, Yam Hill County, and he so heldtbatofficeformorethan 

three years. 

Now I call special attention to what follows: 

Many more than the number of voters constituting his majority bad actually passed in and out of his office on official business. His official character was gen· erally known and was mentioned during the political discussions of the canvass. 

There is the broad statement of the governor to the effect that many more than the number of voters constitutiniY' Watts's majority had 

actually passed in and out of his office on officia1 business. Now, then, 

to the facts. Let us see whether that is precjsely so. How are we to 

arrive at a correct conclusion in regard to that matter T · First, by as- certaining what the majority of Mr. Watts was in the State of Oregon over :Mr. Cronin. Mr. Cronin received 14,157 votes, all told; Mr. 

'Vatta received 15,206, all told. Watts's majority, therefore, in the State was 1,049. Now take the county of Yam Hill, in which the post-office 

is located, of which Mr. Watts was postmaster, and ascertain what 

the whole vote is in th~t entire county, not merely in the precinct in 

which this post-office is located, but in the whole county, and we find 

that in the county of Yam Hill Mr. Cronin received 674 and Mr. Watts 

received 810 votes, all told. So that it is necessary, under Governor . Grover's statement-that is, to make his statement conform to the 

truth-that not only every republican voter among the patrons of this 

office, but that every republican voter in the county of Yam Hill should 

have gone in and out of this post-office on official business, and still 

after that had been done Watts would have a majority of nearly 300. 

But how many more post-offices are there in Yam Hill County f How 

much of a post-office was this office at La fa.J ette, in which so much 

official business was transacted1 accordin~ to the statement of Gov- ernor GroverY In addition to this post-office at La Fayette, there are eleven other post-offices in the county of Yam Hill. There are twelve 

post-offices, all told, in that county; and, that the Senate may understand still more fully the insignificance of the business transacted in 

that office and the facts in reference to the extraordinary statement 

of the governor that more than Watts's majority in the State had gone 

in and out of that office on official business, I beg to read a dispatch 

I have just received from Ron. H. W. Scott, of Oregon, a memuer of 

the national republican committee for that State, in answer to one I 

sent him yesterday for information on this ~mbject. The dispatch is as follows, addressed to myself: t PoRTLA..~, Oru;:ooN, December 18, 1876. 

Total vote La Fayette precinctThat is the precinct this office is inHayes, 106 ; Tilden, 83. Precinct includes considerable scope of territory outaide 

of town, and nearer other post-offices. There is a post·office at SaintJoseph, in La 

Fayette precinct., at which a. number get their mail. Others in La. Fayette precinct arenearer Dayton, and get their mail there. It iB not probable that more than one hundred voters of both political parties regularly get their mail at La Fayette. 

This statement of the governor is so wild of the truth, so unjustifiable, as it seems to me, that I have felt called upon to submit these 

facts for the consideration of the Senate. 

But that is not all in reference to this card of Governor Grover. lie 
1876. CONGRESSIONAL RECORD-SENATE. 285 

states further it will be observed, that "his" [Watts's] "official 

character was generally known." Does Governor Grover presume to 

say to the Senate or to the people of the United States, to whom perhaps this card is addressed, that the republicans of the State of Oregon are all--such consummate a-sses, such benighted fools, that they 

would proceed with the canvass to an election with a person known 

to them to be ineligible as a candidate for elector for the office of President and Vice-Pre-sident t Is that the kind of a compliment the gov- ernor of our State de-sires to pay to persons constituting the party to 

which be does not belong in that State f But he saya further: 

His official character was generally known and wa-s mentioned during political 

discussions of the canvass. 

Well, that is possible, but I scarcely think it probable. I traversed 

that State from one end to the other, from north to south and east to 

west during the campaign for six weeks before the election and up 

until the day of the election; I was there in the State in my own precinct on the day of the election; I voted; and I remained hi the State 

for four days after the election was over ; and I state to the Senate 

that up to that time I never heard the suggestion made from man, 

woman, or child, in the State of Oregon, that Watts was a postmaster. 

Tllere was no paper that said anything about it. There was no man, so far as I know, who ever called attention t.o the fact. But still 

Governor Grover says : 

His official character was generally known and was mentioned during political 

discussions of the canvass. 

:Mr . .MORTON. Let me ask the Senator whether the republican 

party of Oregon had a State central committee with power to supervise the canvass and take notice of any mistake of that kind and cor- rect it if discovered T · Mt'. MITCHELL. We have a republican State central committee 

in Oregon with a most vigilant chairman who devoted his time ex- clusively to the campaign, and as a matter of course if any suggestion 

of this kind had ever been made in the State by anybody it would 

have been corrected. 

Mr. BOGY. I will ask the Senator a. question. Did he not himself 

know that Watts was postmaster! 

Mr. MITCHELL. If my attention had been called to the fact I 

have no doubt I should then have remembered that I had known it some time before, because I presume the fact is that be was appointed on my recommendation. · .Mr. BOGY. Does not my friend think that Mr. Watts knew that 

he was a postmaster himself f 

Mr. MITCHELL. I have no doubt about that. 

Mr. BOGY . . Knowing the fact that he was postmaster, he being an intelligent citizen of Oregon, cannot the Senator suppose that he 

knew he was not eligible as an elector T 

Mr. MITCHELL. I think it is very doubtful in reference to that; 

and in saying that I do not undertake to cast any reflection upon the 

intelligence of Dr. Watts. 

Mr. BOGY. Can it be, in the Senator's estimation, that he is less 

intelligent than this large population of whom he has just spoken in 

Oregon who were so intelligent that they must have known that he was not eligible T They knew the fact that he was postmat~ter. · Were they less intelligent than the men who voted for him f 

. Mr. MITCHELL. As to just how intelligent Mr. Watts is I would 

refer my friend from Missouri to the democracy of Oregon who suffered pretty severely under his campaign in the last election. 

Mr. BOGY. I am only applying the Senator's own rule of argument; that is all. . Mr. MITCHELL. As a matter of course Watts knew that he was postmaster; but I have very grave doubt, be not being a lawyer, not 

being in the habit perhaps of consulting the Constitution of the United 

States as a great many very good men are not in the habit of doing, 

whether Dr. Watts knew that the fact of his being postmaster made 

him ineligible as an elector. · Mr. BOGY. What becomes of your vindication of the rest of the 

people of Oregon 7 Are they all lawyers, the remainder of those voters, that they must have known that he was not eligible if they knew 

the fact that he was postmaster f 

Mr. MITCHELL. I have not been talking about the question of 

knowledge of the law; I have been talking about a matter of fact; 

the question as to knowledge of the disqualifying law was argued here 

the other day, and Govemor Grover places his vindication upon that 

idea, that in order to elect the minority man it is necessary that a sufficient number of voters to overcome the majority of the majority man should have known not only the disqualifying fact but the disqualifying law also. In other words, the doctrine of the law, ignorantia legis 

e.xcusat neminem, does not apply in a case of this kind, but the fact of 

tho existence of the disqualifying law must be brought home to the 

actual notice of the party. But I was not talking about that; I was talking about the question of fact. Governor Grover undertakes to 

defend his action on several grounds. One ingredient entering into 

that self-vindication is the statement made bv him that more than 

this majority, to wit, more than 1,049 republicans of Oregon, went in 

and out of this post-office on official duty before Postmaster Watts, 

and they must as a matter of fact have known of the existence of this 

disqualifying fact. That is what I was talking about. · Then further, in order to bring his case within the rule of the law, 

nameiy, that knowledge of the disqualifying law and of the disqualifying fact must both be brot.tght home by actual notice; the governor 

says: 

The law was known and the fact was known, rendering it disgraceful in him to 

be an elector. 

Tbereis where GovernorGroverplants himself in vindication of this 

extraordinary conduct upon his part. I say, in the absence of my 

colleague, [Mr. KELLY,] who is away-whether on official duty or not 

I do not exactly know-that the constitutional inhibition was not 

known generally, and it is no poor compliment to the intelligence of 

the people of Oregon wb.en I say it either; and, so far as the fact is 

concerned, I am absolutely certain it was not known by more than 

one-tenth, at the very most, of the majority that Watts received over Cronin. I feel perfectly assured of that. Now what does the Gov- ernor say further f He says : 

.A. protest was filed in the ext>cntive office by prominent citizens objecting to the 

issuance of a certificate to Watta as a. person disqnalified, accompanied by proof of 

his disqualification, and demanding the issue of the same to the eligible person having the next highest number of vote.~. A reply was filed ob,jeoting to anything bnt a count of the votes and a certificate of the count, and making no denial of the dis· 

qualifyinl!; facts. 

And then the governor resolves himself into a court ; he files the 

pleadings; he perhaps bears witnesses; without the power to swear a witness, he tries a great fact, or at least he establishes a principle, 

if he doe.s not try a fact, in this case that would in many other cases compel him to try important facts; and then after having heard the case what doe.s he say f He says : 

It was ruled in the easeBy the governor, of coursethat when the objootion to an afplicant's right to receive a certificate rests upon the ground that a constitutiona provision is interposed, the governor, acting under 

oath to support the constitution, is bound to entertain and determine the qnestion. 

But further : 

It was also held that, the law and the fact being well knownWas the governor justified in making any such statement as thnt in 

vindication of his course, that the law and the fact were well known, 

when, as I have shown from the records, his statement in reference to 

the facts is very far from being justified b.y the facts themselves t 

It was also held t-hat, the law and the fact being well known, the votes east for the 

ineligible candidate cannot be counted for any purpose, and the eligible candidate 

having the next highest number of votes was duly elooted. 

· And then he says: 

This rnling was based upon standard authorities, such as Cushing and Grant, the 

decisions of many courts like the supreme court and the court of appeal8 of New 

York, 

When in truth and in fact the court of appeals of New York have 

decided the very reverse in reference to a parallel case. · 

The latter is also the nniform practice in the United States House of Representatives. 

Here again is a statement that will not be borne out by the facts or by the record of the Honse of Representatives. 

AndSays beit ill in accordance with the great weight of all English authorities, both parliamentary and judiciaL 

What further does he say, and I call attention to it to show that 

be has misstated, to use a mild term, the law of his own State in 

making this vindication of himself. He says: 

The law of Oregon providing for filling all ncancies in the electoral college, recognizes a vacancy only in oases where there has been an incumbent and such incumbent has died, has refused to act, neglected to stand, or is otherwise absent. 

I call attention to the closing words in that sentence, "or is otherwise absent." That is not the law; that is not the reading of the 

law; and how that can be the construction of the la.w is more than 

I am able to say. The statute on that subject reads as follows: 

The electors of President and Vice-President shall convene at the seat of govern- ment on the first Wednesday of December next after their election, at the hour of 

twelve of the clock at noon of that day, n.nd if there shan be any vacancy in the 

office of an elector, occasioned by death, refusal to act, neglect to attend, or otherwise, the electors present shall immediately proceed to :fill. by viva t~oce and plurality of votes, such vaMnoy in the electoral college, and when all the electors shall appear, or the vacancies, if any, shall have been fill~ as above provided, snob elect- ors shall proceed to perform the duties required of them by the Constitution and 

laws of the United States. 

The statute says: "By death, refusal to act, neglect to att.end, or otherwise." Governor Grover says: " Refused to act, neglected t.o 

stand, or is otherwise absent." The governor interpolates the word 

"absent" which is not in the statute at all. The statute stops with 

the word" otherwise." The governor adds the word "absent." An 

argument was made the other day by the honorable Senator from 

Pennsylvania. [Mr. WALLACE] on the subject of vacancies to the effect 

that there could be no vacancy where there waB a failure to elect. 

That very often is so in many of the States and the adjudications are different in different States. Pennsylvania has decided one way and 

California has decided the other; and Missouri and other States have 

differed. But all these questions mu~t be determined, and are determined-how' By the constitutions and the laws of the respective States; and that is the very reason we :find different a-djudications 

upon this question in different States. It is because the constitution 

and the laws are different on these matters in the different States, and 

the question as to whether or not there is a vacancy in the office of 

presidential elector in Oregon must be determined, not by the adjudi-
286 CONGRESSIONAL RECORD-SENATE. DECEl\IBER 19' 

cation of this State or of that State, but by a fair and reasonable con- struction of the constitution and the laws of the State of Oregon; and 

I say that any lawyer, who will take the trouble to take up the laws 

of Ore!Ton on this subject from beginning to end and examine all their 

provisfons, will not hesitate to come to the conclusion that a vacancy occurs in the office of presidential &lector when for any ca.use the 

whole number are not there on the day .fixed for_ their meeting by 

the act of Congress. Our statut.e in Oregon on the subject of vacancy contemplateswhat f It contemplates the right of a competent tribunal to declare 

void an election that is void for any cause, by reason of ineligibility 

if you please of the party voted for ; and there is no vacancy, at least so ·far as State offices are concerned, to which the same rule does _not 

apply that is applicable to this matter, because the manner of appomtment of presidential electors is left to the State. I say the law of 

Oregon does prov].de for declaring. a vacancy by the dec~ion. of a competent tribunal where the eJect10n as a matter of fact IS v01d, as I will show. I call attention to section 45, on page 709 of the Code 

of Oregon, providing how offices -shall become vacant: 

- Every office shall become vacant on the happening of either of the following events before tho expiration of the term of such oftice : 1. The death of the inclllllbent; 

2. His resignation; 3. His removal; 4. His cea. ing to be an inhabitant of the district, county, town, or village for 

which he shall have been elected or appointed or within which the duties of his 

office are req u.ired to be discharged; 5. His conviction of any infamous crime or of any offense involving a violation of 

his oath. 

6. His refusal or neglect to take his oath of office or to give or renew his official 

bond, or to deposit such oath or bond within the time prescribed by law; 7.-

And this is what I call special attention to7. The decision of a. competent tribunal declaring void his election or appoint- ment. 

So that the law of Oregon provides in terms that, where a person is 

vot.etl for for any office by the people of that State who is ineligible, 

then, upon a declaration to that effect from a competent tribunal, it 

is a case of a vacancy,not a case of a failure to elect, as was argued by 

the Senator from Pennsylvania the other day. And will anybody 

question the right of the Legislature of Oregon to establish its own l'lllcs in reference to this matter f It cannot be contended for a mo- ment tba.t this wa a case of a failure to elect and that there was no vac::mcy. Governor Grover himself assumed to be "the competent 

tribunal" mentioned in t,he statute which might declare void an election or appointment. He acted upon the assumption that he was the 

competent tri bnnal. He declared the election void. If he was "the 

competent tribunal'' and if he did rightfully declare the election void, 

what result followed f Under tbe plain provision of the statute of 

the State, a vacancy occurred, and not a case of a failure to elect simply; and, there being a vacancy, then in any possible view of t,bis 

matter who bad the right to fill it f That is the next question. 'Ve 

all agree on this. Tbe1·e is no dispute here. Governor Grover himself must necessarily concede that if there were a vacancy he had no right to fill it; but that that right belonged to the other electors, as provided in another section of the statute to which I called attention 

the other day and which I read a moment. ago. That statute declares·: 

The elect-ors present shall immediately proceed to fill, by viva voce a.nd plurality of votes, such vacancy in the electoral college. 

I do not know whet.her Judge Hoadly obtained his cue from Gov- ernor Grover or Governor Gover obtained his cue from Judge Hoaclly. 

Judge Hoadly says, if I remember rightly, that be prepared his opinion for Governor Gover at the instance of ?t1r. Pelton, who is I believe the private secretary of Governor Tilden. In that opinion or at least in his communication to the Cincinnati Commercial, giving 

tllat paper a statement of tbe points presented in his opinion, Judge 

HoacUy uses this language: 

.As John W. Watts wa~ thepostma ter of the county seat of one of the most impor- tant counties in 01 e~on, I presume that the governor and secretary of state, the 

canvassing board of Oregon, fmmd in point of fact, if they adopted the rule of the 

case of the People '118. Clute, that this fact was sufficiently notorious to the republi· can electors of Oregon to charge them, or at least enough of them, with not.ice of 

1he fact of his ineligibility t.o pring it within this rule so far as the matter of fact 

is r,oncerned. 

* 

Without knowing, therefore, whether the governor of Oregon adopted the Indi· ana rule or the New York rule, I think I am authorized to presume t.hat if he 

espou ed the New York doctrine hff was sati fied in canvassing the votes that a. number of republican elect{)rS votingforWatta more than equal t{) Watt 'a majority o>er Cronin knew that be was a. postmaster, and tha.t the sruno.nnmber either knew or were bound to know of the constitutional disqualification which attached to the office of Wa.tta. 

Mr. President, I have said about all that I have to say in ref- erence to this matter. I have felt it to be my duty to call attention 

to these statements in the card of Governor Grover, and let me once more call the attention of the Senate to the slender authority, to the 

slender structure upon which Governor Grover could stand legitimately in an exercise of the extraonlinary power that he took unto 

himself. Under the statutes of Oregon it is no part of the duty of 

the governor of Oregon even to issue a certificate to presidential 

electors. .All he haa to do in the matter is to sign his name to cer- tain lists which tbe statute says shall be prepared by the secretary 

of state and to which the secretary of state shall attach the great 

seal of the State. Section 3 of the laws of Oregon providing for 

the election of presidential electors reads as follows: 

Tbe votes for the electors shall be given, received, returne<l, and canvaR ed as tho same are gi\"en, retumed, and canva sed for members of Congres . Tbe sec- retary of state shall prepare two lists of the names of the electors elected and affix 

the seal of the State to the same. Such lists shall be signed by the governor and 

secretary, and by the latterThe secretarydelivered to the college of electors at the hour of their meeting on such first Wednesday of Decembor. 

Remember now they are to be 11 given, received, returned, and can- vassed," not certified, "as the same are given, returned, and canvassed 

for members of Congress." In reference to members of Congress, 

the governor of the State nuder the law is made to do an additional 

duty to that devolved upon him in reference to the certification as to presidential electors. Let us turn to that act and see. Section 

33, page 706 of the oode provides for canvassing and returning the 

votes for members of Congress; I will read it: 

The counfy clerk, immediately after making the abstract of the votes ¢-venin 

his county, shall make a copy ol each of aid abstracts. and tmnsmit it by mail to the secretary of state, at the seat of J!:Overnment; and it shall be the duty of the 

ecretary of state, in the presence of the governor, to proceed within thirty days 

after the election, and sooner, if the returns be all received, to canvass tho votes given for secretary and treasurer of state, justices of the supreme court, member 

of Congress, and district attorneys, and the governor shall grant a certificate of 

election to tbe person ha\"ing the highest numfierof votes for ettherof such offices, 

and shall issue a proclamation declaring the election of such person. 

Now in reference to the election of members of Congress the gov- ernor does whaU He sits by; he is present when the secretary can- vasses the vote. When the vote is canvassed, then, so far as relates 

to members of Congress and State officers, it is the duty of the gov- ernor to do what t To i sue a certificate to whom f He bas no judicial power there, not a particle; but be is to issue his" certificate of 

election to the person having the highest. number of votes." 

The Senator from Ohio [Mr. THURMAN J said the other day, " suppose Queen Victoria had the highest number of votes;" I say be bad no discretion in the matter but to issue his certi.iicate to Qneen Victoria. He said, ''Again snppo e Goldsmith Maid had the highest 

number of votes, what then t" I say then no person would have been 

voted for; and he would not is ue any certificate at all. But what I 

wanted to say was that this last duty that tlie governor has to perforrri with reference to members of Congress, namely, to issue a certificate anu make a proclamation, are things that be does not have to do 

with reference to the presidential electors, because the votes for presidential electors are given, received, returned, and canvassed the same as tho e for members of Congress; but they are not certified to the same as members of Congress. Whyf Because the law in the one place as to members of Congress says f,hat the governor shall issue his 

certificate and make proclamation, while in the other case in reference 

to presidential electors the law says this: 

The secretary of state shall prepare two lists of the nam011 of the electors elected, 

and affix the seal of the State to the same. Such lists shall be signed by tbo gov- ernor and secretary, and by the latt-er deli\"ered to the college of electors, at the 

hour of their meeting, on such first Wt:dnesday of December. 

So there is the structure and the only structure upon which Gov- ernor Grover could stand in reference to any action that be may have 

taken in reference to presidential electors; and if any lawyer in 

Christendom, if Judge Hoadly, after a careful examination of all these 

provisions-and be evidently did not canvass them all-can come to 

any such conclusion as that the executive of the State of Oregon had 

the right to exercise judicial ftmctions or quasi-judidal functions 

and pa s upon this important matter, then I confess! haYe read law in 

vain and know nothing about it whatever. 

I have nothing more to say except this: My friend from Dela- ware [Mr. BAYARD] suggested an amendment, and he has appealed 

to me to accept that amendment. It is an amendment which 

modifies the preamble of this resolution. I regret to say that so far as I am conceri)ed I cannot accept H, and I hope it will not prevail . One reason why I cannot accept it, one reason why I think it ought 

not to prevail, is this: I upon my own motion asked that this resolution with its preamble might by a vote of the Senate be sent to the 

Committee on Privileges and Elections, in order that the Senate 

might have the benefit of the opinion of that committee both as to 

the form and propriety of the preamble. The resolution went to 

that committee by a vote of the Senate. It was taken up by that 

committee, r.arefully considered, modifications proposed and adopted, 

and the result is before the Senate. A majority of that committee 

have recommended the adoption of the resolution and the preamble a.s jt now stands before the Senate. That is one reason. Another reason why I shall oppose the amendment in regard to the preamble 

is becanse the preamble is right, because it ought to be there, be- cause the resolution would not be complete without it, and if objec- tion at all exists to the preamble it is to be found in the fact that it 

is mild, moderate, mercifnl; and it is not unusual to prefix preambles to resolutions; and it seems to me that it is eminently fit, when a resolution of extraordinary character, as the one before the Senate 

is, is presented for the consideration of the Senate, that the reason in a mild form at lea-st should be stated as a preamble to the resolution, especially if the resolution seeks to inquire into the conduct of 

officials. If the public charge that is made is a venial one, let the 

preamble be mild. If it is a grave one~ then I say justice to the per-
1876. 

i 

CONGRESSIONAL RECORD-SENATR 287 

son charged, justice to Governor Grover, justice to the Senate, justice 

to everybocly requires that the reasons be given in the preamble for 

the proposed action. 'fh~refore I hope that the amendment suggested 

by the Senator from Delaware will be voted down; and begging pardon of the Senate for taking up so much time, I submit the matter, 

and hope we may get a vote to-day if possible. 

Mr. MORTON. Mr. President, in my absence, I believe on l!'riday 

last, the Senator from Ohio [Mr. THUR.l\IAL~] replied to some remarks 

that I had made on this question, and I propose now to answer them 

very briefly, not at all complaining that they were made in my ab- sence. My being absent was my fault entirely. : The Senator from Ohio read what purported to be a brief which had 

been submitted by Judge Hoadly, so called I believe, of Cincinnati, 

to the governor of Oregon, and upon which it is said the governor of 

Oregon acted. In law this paper is exceedingly brief, and I think I 

but do it justice when I say it is the thinnest and poorest pettifogging I ever saw put upon paper. While purporting to discuss the law 

governing the question of elections, it ignores the great cuqent of 

American authorities, refers to three American authorities whiCh have no -connection whatever with the case, and wholly fails to state the 

substance of the fourth opinion, which is chiefly relied upon. But the 

great current of American authorities upon this question is ignored, as also the action of the two Houses of Congress. In this opinion of 

Judge Hoadly we find the fo1lowing statement: 

Upon this question how votes cast for an ineligible candidate are to be considered, two opinions have obtained in the Unit.ed States. Unless I am misinformed as to the facts of the Oregon case, Governor Grover's action is not iD conftict with either 

of these views. · 

Here we have the extraordinary statement that Governor Grover's 

conduct is not in conflict with either view that has obtained in the 

United States. The mere reading of that statement ought to be a sufficient answer to all that there is in it. He refers to the case in 

15 California t.o show that where a ,candidate was ineligible at the 

time of his election that difficulty cannot be cured afterward so as to make him eligible to take the office ; but be utterly ignores the 

two strong direct California decisions to the effect that the minority man is not elected. That was hardly dealing frankly with Governor 

Grover. If he himself was not a lawyer and this opinion was sent to 

instruct him, when the California reports were referred to by Judge 

Hoadly, he ought to have stated that that court had decided that the 

minority candidate was not elected where the maJority candidate was ineligible. I read the authorities the other day and need not again 

refer to them. Judge Hoadly refers to the case in 4 Harris and 

McHenry, the case of Hatcheson vs. Tilden and Bordley. There the 

majority candidate brought suit for the purpose of recovering possession of the office. The office, I believe, was that of sheriff. He wa.s ineligible because he owned no real estate, which the law of Maryland 

required a. sheriff to own. The ineligibility was removed at twelve 

o'clock on the day of the election, and he brought snit to recover the 

office. The only question in that case was whether he was made 

eligible at that time. As to whether the minority candidh.te could 

be elected nothing was said. The minority candidate did not claim 

the office; there was no question of that kind referred to; and yet 

Governor Grover is gravely referred by this Cincinnati judge to that case as if it had something to do with the matter. He then refers to 

the case of the Common wealth vs. Read, 2 Ashmead's Reports. That was a. case of a corporation election. The law required the corporation in electing a treasurer to vote by ballot. Nearly all the mem- bers vdted orally, t'iva voce: One man voted. by ballot. The court 

held that the others were no votes at all-wh1ch was very correctbecause they had not voted by ballot. And that is referred to as an authority bearing upon this question. Now I come to the fourth case, 

and that is the Indiana case, upon which he places the most stress. 

He only states a part of that case. I am going to read what be says 

about it. He makes this quotation: 

Whore a majority of the ballots at an election are given to a. candidate who is not eligible to the office, the ballots so cast are not to be counted for any purpose. They cannot elect the ineli~ble candidate or defeat the election of the opposing candidate by showing that ne did not receive a majority of the votes cast at such election. It follows that the eligible candidate wilf receive an office, although less 

than a maJority of the votes are cast for him. 

That is the part be quotes; If be bad quoted the whole case, it 

would have shown that the Indiana case does not cover the Oregon case at all. I call the attention now of the Senator to the fact that 

this Indiana case, which is so often referred to, does not cover the Oregon case at all, and if Judge Hoadly had quoted the whole case to 

Governor Grover it would haveso\ppeared. ' 

I may remark that the Indiana case, going as far as it does, has lJeen, 

I believe, condemned by every court that has passed upon it outside 

of Indiana. It has been expressly condemned by a committee of this 

body and by the action of this body. It has been expressly con- demned by a committee of the House of Representatives aml by the 

action of that House repeate(Uy. But coming to that case in its full 

length and breadth, it does not help GovernorGroverone bit. Now, 

I am goiug to read that ca e, and I oall the attention of Senators to it. 

In that case Wallace was a candidate for sheriff in the county of 

Marion, in which is the city of Indianapolis. He had been elected mayor of tlle city of Indianapolis. The law expressly gave to the 

mayor of the city of Indianapolis a criminal jurisdiction throughout 

the county. He became a candidate for sheriff in the same county 

and was elected. Under the constitution be was ineligible. What 

l 

did the court sa.y in that case, and, by the way, a case that has been 

condemned everywhere f The court said: 

Where the ineligibility of a candidate arises from his holding, or having held, a public office, the people within the jurisdiction of such office are held in law to know-are chargeable with notice-of such ineligibility, the votes given for such 

candidate are of no effect, and his highest eli!Pble competitor is elected. 

The court below fell into error on this pomt by viewing Wallace simply in the 

character of mayor of Indianapolis. As mayor, he was simply a. corporation officer, and perhaps necessarily known as such only within the city limitB. But he was more than a. city officer; he was a judicial officer, ajudf;eof a court, with juris- diction co-extensive with the county limits, created to admmister the general laws 

of the State to the extent of his jurisdiction. In this capacity of judge, the people of the county were bound to Jtnow him, and were bound to know the disability as to the right to hold other offices which his character as judge brought upon him by the constitution and laws of the Sta_te.-14 Indiana Reports, 103, 104. ., 

The point there decided was that inasmuch as his.criminal jurisdiction extended to the whole county! the people of that county had 

constructive notice that he was ineligible. Apply that to the Oregon case. Let us suppose that the people within the mail deliveryof the 

postmaster at La Fayette, Oregon, were bound to take 11otice that he was a postmaster and ineligible. That would be the furthest that 

this constructive notice would extend. How fa.r would that goY I saw a dispatch to-day, I believe in the hands of the Senator from 

Oregon, and will thank him if he will let me have it. Here is a little 

post-offi"ce that is not a presidential appointment, as I am informed; 

not large enough for that, in the town of La Fayette, in the county of 

Yam Hill: 

Total vote of La Fayette precinctThat is the whole townshipTotal vote of La Fayette precinct, Hayes 106, Tilden 83. The precinct includes con- siderable Rcope of country outside of town, and nearer other post-offices. There 

is a post-office at Saint Joseph in La Fayette precinctIn the same townshipat which a number get their mail. Others in La Fayette precinct are nearer Day- ton and get their mail at that point. Not probable that more than·lOO voters of 

both parties regularly get mail at La Fayette. 

Now apply the case of Gulick, this Indiana case, -to the Oregon case. Let us hold tllat the people within that post-office delivery were bound to take notice. How many were there f Taking the votes of 

both parties there would not be, as we are informed, 200 votes in that 

post-office delivery. 

Mr. MITCHELL. The salary is $268. 

Mr. MORTON. The salary is 268. Suppose we strike out all the 

votes in that post-office delivery Watts. still has a majority of 800 

votes left, men who had no notice, const'rnctively or otherwise, that 

he was postmaster, so that if Hoadly in presenting the Indiana case to Grover bad given him the whole case, it would show that it did 

not cover what he was req\lired to do. I understand that my friend 

from Pennsylvania, theSenatoron my left, [Mr. WAI..LACE,]does not 

advance. the idea that Cronin was elected. He was presenting us a sort of color for Grover's action ; he was constructing merely a figleaf. My friend from Ohio [Mr. THURMAN] was also t.rying to form a fig-leaf to cover the nakedness of the action of Governor Grover. 

My friend from Pennsylvania in the course of his remarks did not say 

whether in his opinion Cronin was elected, and I should like to ask 

him that question now. I will give him the floor if he will answer it. 

Mr. WALLACE. As I am put on the 'witness stand by the Senator, 

I will state that I said distinctly that my opinion in that case was that there had been a. failure to elect in the State of Oregon. 

Mr. MORTON. I overlooked that part of the Senator's speech. 

The Senator believes that Cronin was not elected and that the gov- ernor of Oregon had no rjght to issue a commission to him. The Senator from Tennessee on my right, [Mr. KEY,] I believe, on yesterday 

stated that in his opinion Cronin was not elected, and I believe I have 

heard no one yet in the Senate advance the opinion that Cronin was elected. I think the Senator from Ohio [Mr. THURMAN] cannot say 

so, because it would be in conflict with the views of the law that he 

has before strongly expressed in the Senate. But they say there was no election. . • This Indiana case therefore may be left entirely out of view. I am referring to this brief of Hoadly's, which seems to have been intended to form an excuse ior the action of the governor of Oregon. 

He himself has bronght. it forward and has volunteer-ed the statement that he was the man who furnishes the law to the governor of 

Oregon. I say that this brief of Hoadly's misstates the law and 

the fact. It suppresses the great current of American authorities, 

the action of the two Houses of Congress, and represents to him what 

is not the law in any State in this Union, not even in the State of 

Indiana. If· he had been frank to the -gove-rnor of Oregon and read 

to him the whole Indiana case it would have shown that even that 

furnishes no ·excuse for his conduct whatever. 

The best that has been attempted in the Senate in regard to the 

action of .the governor of Oregon has been to say that he had some color. No body has ventured an opinion thus far that Cronin was elected, 

but the attempt has been to form a sort of excuse for him. So far as 

this fig-leaf is concerned it is my purpose to even tear· that away_ to 

show that there was no color, and that the action of the governor of 

Oregon was directly in the face of the statutes of that State, not to 

say of the general law of the land. . Mr. BOGY. If the Senator will pardon me,· I do not understand his 

observation. We contend that Cronin was elected and I think every 

Senator on this side of the Senate will assert so. He did not" receive 
28~ OONGRESSIONAL. RECORD-SENATE. DEC:EMBEB 19, 

a majority of the votes, but yet he was elected, for being elected the 

governor certified to his election. That is the proposition. 

Mr. MORTON. My fJiend says all the Senators on that side con- tend that the action of the governor of Oregon was right, and 

Cronin WllB elect,ed, when the Senator from Pennsylvania ha-s said 

within two minutes that there was no election; that Cronin was not 

elected. My friend did not hear his friend from Pennsylvania; he did 

not hear his friend from Tennessee, who said that Cronin was not 

elected. This is the first time that I have heard it said by any Senator that Cronin was elected. The Senator from Ohio took good care not to say that, and he will not say it to-day. I venture that asser- tion--

1 Mr. BOGY. Cronin could not have received the certificate of election, unless he had been elected, nl'lleSd the man who gave the certificate thought he was elected, surely. · Mr. MORTON. He did receive the certificate of election, not having been elected. That has been often done. That is the very thing we are complaining about, that he was not elected, but was falsely 

certified to be elected. Now I call the attention of the members of 

the Senate and of the country to the statutes of Oregon that have 

just been read by my friend from Oregon. My friend read the thirtythird section of the act, which shows that the votes for secre.tary of 

state, treasnrer of state, justices of the supreme court, members of 

Congress, and district attorneys shall be opened and canvassed by the 

secretary pf state in the presence of the governor. The governor is 

merely a witness; the work is to be done, the counting is to be done 

by the secretary of state. The governor is simply to be present; that 

is all; he bas no connection with it otherwise; he takes no part in it; 

but it is to be done in the presence of the governor by the secretary 

of state. And then the law reads thus: 

The governor shall grant a certificate of election to tlle person having the high- est nnmber of votes for either of such offices, and shall also issue a proclamation 

deelaring the election of such person. 

That takes away all discretion upon the part of the governor. He 

shall issue a certificate "to the person having the highest number of 

votes." 

It may be that the supreme judge or the secretary is ineligible; it 

may be that the member of Congress is ineligible; but the statute is 

positive that the governor shall cerftfy to the man having the highest number of votes. That is all he has got to do. If he does less than 

that, or if he does more than that, he comes short of his duty. That 

cuts off all judicial power, it leaves him no discretion whate\er. It 

is positive like the New Jersey statute I had occasion to examine today. The governor is simply to certify to the man who has the highest number of votes. That is the positive obligation of the statute of 

Oregon. I want Senators to notice that when they make their arguments trying to justify the action of that governor. 

The votes for the electors shall be given~ received, returned, and can\'"a&ed as the same are given, returned, and canva.ssea. for members of Congress. 

The thing to be done just as it is done for members of Congress. 

That is all. He has no more power to decide upon questions of eligibility than he has in regard to members of Congress. The canvass is to be made precisely as for members of Congress, and in re('fard to 

members of Congress the statute says that he shall certify to the man having the highest number of votes; and that was Watts in this case, so that he violated the statute of Oregon directly and expressly. The 

section further provides : 

The secretary of state shall prepare two lists of the names of the elect.ors elected, 

and affix the sea.l of the State to the same. Such lists shall be signed by the governor and secretary, and bv the l.'lotter delivered to the college of electors at the hour of 

their mooting on such first Wednesday of December. 

These votes are to be opened and canvassed as for members of Congress. The secretary of state shall make out a list of who is elected 

and the governor shall certify to it. He bas no discretion; it is a simple ministerial duty. The law says that the governor shall certify 

to the list thus made out by the secretary. If there is any discretion 

anywhere it is in the secretary, it is not in the governor, because this 

statute says that he sllall certify the list thus made out by the secre- tary. That is all he has to do about it. He has got no more discretion than a page, not a particle. The statute is obligatory and 

positive that he shall certify to the list made out by the secretary, 

and the secretary shall canvass the votes just as for a canvass in case of members of Congress; and in regard to members of Congress the 

statute is positive and peremptory that the man who has got the highest number shall be certified. Therefore this governor bad no more power to p388 upon the question of eligibility than he had in regard 

to members of Congress or in regard to a State officer, and in regard to 

those he has to certify to the man who has the highest number of votes. 

Looking at these statutes, even the fig-leaf is gone. There is no 

possible excuse for this conduct; there is no color for it; it is a direct 

and positive viola.tion of the statutes of Oregon, and it is so entirely outside of the question of the decision being wrong. If he had discretion then he decided right against the law, right in the teeth of 

the law as it has been laid down in the Senate on various occasiona1 by the House of Representatives, and by every court in the land, 1 

believe, save one, and even that bas pot gone to the extent of cover- ing this a-ction in Oregon. Now I come to another point: 

Such lists shall be signed by the governor and secretary, au.d by the latter delivered to the college of electors at the hour of their meeting on such first Wednesday of December. 

The list is to be delivered to the college of electors, the phrase "college of electors" being used; and that means more than one elector. 

It means at least the majority. It speaks of them as an organized 

body; it speaks of them as the "college;" it does not say tha.t. the 

certificate shall be delivered to each elector to make it an individual concern. 0, no; but the law says that the lists shall be delivered to 

the " college of electors." That means delivered to the electors w ben 

they are together and have assembled to perform their functions. 

How did the governor observe that part of t.he law t Did he deliver 

the certificates to the college of electors t No, sir; they were delivered to this man Cronin, who himself had never been elected and who 

carried them off out of the room. They should have been delivered to 

the college because the law of Oregon requires it, and when they were delivered to one man, even had he been elected, that was :t violation 

of the law. He had no right to ~ve them to an elector, however honestly elected. They are to be delivered to the college; that is to say, 

to the electors when a-ssembled to perform their functions. That is 

tJ;te la of qregon. If Cron~n had been lawfully elected, to give to 

hun the certificates and for h1m to have carried them off would haYe 

been as clear a violation of the law as could be imagined. It will re- quire a very ingenious horticulturist or agriculturist to construct a fig-leaf big enough to cover this part of the transaction. 

Mr. BOGY. I would say to the Senator that being delivered to the 

college they bad to be delivered to one member of the college. 

Mr. MORTON. No, sir, not to one member of the college; the cer- tificates are to be delivered to them when in session, to all of them. 

Mr. BOGY. They were not in session. 

Mr. MORTON. No, sir, they were not in session; but they were delivered to a man who did not belong to the college and who carried them 

off. That is the way of it. It wa-s all a part of the arrangement; and 

this man to whom they were delivered, himself never elected, went off 

and constituted himself a quorum. It generally takes at least a majority to make a quorum, and this man who was never elected consti toted 

himself a quorum ; he went off to another room, and thet:e he appointed 

two other men and they cast the vote of Oregon. .My friend smiles 

at that. It is too ridiculous and contemptible to be gravely discussed 

anywhere; nnd yet that is the trick that is to control the election of a President of the United States. Heaven save the mark! By the 

way I want to speak of another matter. 

'Vhile the Senator from Ore~on was speaking about this constructive knowledge of the people ot Oregon my friend from Missouri, who 

is exceedingly alive to the importance of this question, asked him 

whether Watts himself did not know that he was a postmaster. I 

suppose he did. He wanted to know if the Senator from Oregon himself did not know it. Suppose he did know the fact, yet tha.t that fact 

made him ineligible even did not occur to the Senator from Oregon, 

good lawyer that he is. I might turn that a little. My friends turn 

it away. There is a certain man living in Saint Louis by the name of Frost, a man of a good deal of notoriety, who was in the confecl.:. 

erate army, and ineligible under the fourteenth amendment. 

Mr. BOGY. I deny that. 

Mr. MORTON. My friend says he denies it. I suppose it did not occur to my friend that Frost was ineligible. He 1s a much more publiG man in Missouri than Mr. Watts is in the littlo State of Oregon, very much more. He ha-s been an officer of the Army of the 

United States, has been in the senate of .Missouri, was a prominent 

man, and a man of character ; and his public career was well known 

throughout that State. He was a graduate at West Point had served 

in the old Army, went into the confederacy and was disqua.iified by the 

fourteenth amendment, and has never been relieved by this body. 

Now my friend, according to his authority, according to his rule 

of logic, wa-s bonnd to take notice of that; and when he voted for 

Frost he voted for him knowing that he was ineligible, and so with 

every democrat in the State of Missouri knowing that Frost was ineligible, whereas I suppose not one in a thousaml ever thought about 

it, just as in the case of Oregon. They might have known that he was in the confederate army and an old officer of the United States, 

for he is a man remarkably well known ; bnt the fact that that made 

him ineligible under the law did not occur to my friend from Mia ouri or his fellow-democrats, intelligent as they are. I might refer to other cases by way of argument. If the act. ion of Grover was right in Oregon and the law that he acted upon is good law, then it must have 

been good in Missouri, and there the certificate.should have been given 

to Steifel, the highest republican candidate for elector in that district; 

but, as the farmer said to the lawyer, " circumstances alter cases," and 

what was good law in Oregon was not good law in Missouri. 

I want to call the attention of my friend from Pennsylvania and 

others to the statute of Oregon in rega.nl to filling va.cancies : 

The electors of President and Vice-President shall convene at the seat of gov.ernment on the first Wednesday of December next after their election, at the hour of 

twelve of the clock at noon of that day; aml if there shall be any vacancy in the 

office o.f an electorNot "by absence;" 0, noany vacancy in the offico of an elector occa ione<l by death, refusal to act. neglect to 

attend, or otherwise, the electors pre ent shall immediately proceed to iill, by vive~ 

t~oce and plurality of votes, such vacancy in the electoral collt~ge. 

If there shall be any vacancy by death, refllsal to act, neglect to 

attend, or otherwise, a. vacancy from any cane whatever, then the 

electors present shall immediately fill the office. 

This is the broadest statute that I know of in any State; very 
1876. CONGRESSIONAL· RECORD-SENATE. 289 

mnch broader than that in the State of Missouri, as I can show to my 

friend. This provides for filling a. vacancy for any cause. If they 

voted for but two men in the first place, and thus left a vacancy, 

they can fill it under that provision. If they thought they were electing a. man, and they failed by mistake of law, by accident, or mistake of fact, and did not elect him, they can fill it. Here is a broad statute autqorizing them to fill a vacancy from any cause what- ever. There may have been no election at all, and yet they can fill 

the vacancy. Yon cannot conceive a vacancy existing from any cause that could not be filled by the electors in Oregon. Therefore, this 

goes far beyond the statute of Missouri, as I can show to my friend; 

and he will readily admit it. This comes directly within the act of 

Congress. I want to call the attention of my friend to the act of Congre s. I turn now to the one hundred and thirty-fourth section of 

the Revised Statutes : 

Whenever any State has held an election for the purpose of choosing electors 

and has failed to make a choice on the day prescribed by law~ the electors may be 

appointed on a subsequent day in such a manner as the 'tegismture of such State 

may direct. 

This provides for a case where there was no election at all. We will 

suppose that the people of Oregon only put two names on their ticket, 

and did not vote for three electors, only voted for two, and, therefore, 

there is a vacancy, an original vacancy, if you please. Then under 

this act the Legislature may provide for supplying that vacancy at a subsequent day. That vacancy maybe supplied in anyway that the 

Legislature of Oregon shall provide. This brings the statute of Oregon to the very case referred to. They have provided for filling that 

vacancy by authorizing the electors to fill a vacancy occasioned in 

any manner whatever, arising from any cause, because the words "or 

otherwise 11 are just as broad as they can be made. They might have 

written a whole page, but could not make it any broader. It comes directly in the wake of the act of Congress. The act of Congress 

authorizes the State of Oregon to do just what she has done, and she 

haa authorized the electors to fill a vacancy arising from any cause. There is a complete chain of title. There i8 not a link of it out. 

In the case of the statnte.of Missouri-! have not got it before me, 

but I remember it well-that provides for a vacancy occurring by reason of the absence of any of the electors appointed, first requiring 

them to be appointed. It declares that, if there is a vacancy among 

the electors that have been appointed, the electors may fill that 

vacancy, so that it is very much more narrow; and yet it was con- sidered broad enough in Missouri to include the caso of filling a vacancy of a man who was ineligible under the fourteenth amendment. 

I would say to my friend from Missouri, if he is looking for technica1 

objections to an elector, that he should bestow his attention nearer home than the State of Oregon. . :Mr. :MITCHELL. Did the majority of electors fill the vacancy in 

that case in Missouri f 

:Mr. MORTON. I think so. Mr. :MITCHELL. I should like to know of the Senator from Missouri if that is a fact, if the majority of the electors in Missouri filled 

the vacancy, whatever it was f 

Mr. BOGY. Yes, sir. 

Mr. MORTON. And a vacancy of an elector who has first been 

appointed, mind you ; there must have been an election and thon a vacancy. He must be .dead, absent, resigned, or refussd to act, but 

first under the statute of Missoun to authorize electors to act the 

electors must have been appointed. That is not the case in Oregon. 

It goes much beyond that. • Enough, Mr. President, on that point. Now in reply to my friend 

from Ohio, who somewhat citicised my argument the other day, I 

want to·say that I am willing to let the result of this case abide by 

his report to this body in the case of Abbott, and upon the very able 

speeches that were made in support of his report in that case. I will 

ask the Secretary to read those passages that I have marked on the 

two hundred and thirty-fifth and two hundred and thirty-sixth pages 

of the Globe of the session of 1871..J72. I will state that these speeches were made in the Abbott case where a seat was claimed for Mr. Abbott as the minority candidate, because Vance, the majority candidate, was ineligible under the fourteenth amendment and that the votes cast for 

him were considered as void and thrown away. 

The Chief Clerk read as follows : 

Again, in the English cases the intention of the voter to throw away his vote might well enough be imputed to him, because, as I said, it belonged to him, and if 

be knowingly and willfully voted for a man whom be knew would never be allowed to bold the office, the natural presumption was that he intended to throw away his vote ; and it is upon this ground, that he did willfully throw away his vote, that his vote is r~jected from the count. This can be proveO. in a sentence almost. If the 

English voter voted for a disgualified man, not knowing of the disqualification, then the minority man is not e1eoted. We allllg!'ee to that. Every case says that. 

The bare fact, then, of disqualification or disability on the part of the man receiving a majority does not elect the minority man. It is necessary not only that the rua,jority man shall be disqualified, but that the voters shall have had clear, posi· tive, certain knowledge of this disqualification, and yet contumaciously, willfully and knowingly cast their votes for him; and when tnat is the case they may well enough be presumed to have intended the natural result of their act, mtended to throw away their votes. 

I proceed to show further differences between the English cases and the case before us. In the English ca es tho voter knew to a moral certainty that the person 

for whom he voted would never be permitted to bold tbe office. Therewasnothin~ 

in the British constitution, nothing in any act of Parliament, nothin"' in any ju.di- ci:ll or parliamentary decision that held out the least idea. or hope that the disqualiV-19 

ficatiou of the person voted for would be removed, and he be permitted to take and 

hold the office. 

* * * * * * .. 4. Again, in England nnmerous decisions bad settled the law. The Senator {rom 

Wisconsin said it had been settled for three hundred years. I do not care about 

going into the chronology to know whether that settlement was perfectly exact or not, but it was well set1Ied in England that in elections of the kind that have been1 

referred to, if the voter knowingly cast his vote for a disqualified man that vote would be rej~ted. Every voter, therefore, casting his vot-e for a disqded man,· knowing him to be so, knew that the minority man would be seated, and therefore 

be might be held to have assented to the seatin1! of that minority man. But no snch. thing was known to the General Assembly of North Carolina. They had no right to think any such thing, for from the very foundation of this G-overnment-down 

to this day, at least from 1793, down to this day, there is an unbroken chain of cases in both Houses of Congress ~o-ainst the idea of seating a minority man, while there 

is not one single instance from the foundation of the· Go>ernment to this day in 

which a minority man has been seated in either branch of Congress on the ground 

that the man who received a majority of the votes was a disqualified person. 

Mr. MORTON. There is the strongest possible statement made by 

the Senator from Ohio in his speech. He says there is not a single 

instance in the Congress of the United States where it was ever done. 

Again he says: 

Again, here is another thing that the Legislature of North Carolina had a right 

to know -arid that distinguishes this case from the English cases-and that is, that 

tbe weight of judicial decision in the United States is decidedly against the claim 

of a minority man to an·election. That is an element wholly wantin~ in the English cases. In England the entire current of decisions was that the mmority man could have the seat. In America the decided weight of judicial opinion, in fact 

every case but oneAnd that is the caae in Indiana.-

in fact every case but one decided by a supreme court is against the pretensions 

of the minority candidate; and that the Legislature of North Carolina had a right to look at and to build their expectations upon when they voted for Mr. Vance. 

I could not possibly state the law any more strongly than it was stated by the Senator from Ohio. Again he said: 

Here, then, are no less than six or seven important. nay almost every one of them 

conclusive, elements hi this cas6, not one of which was in the English cases; and 

yet it is contended that the Senate of the United States is to disregard the fir!>t prin• 

ciples of republican government, and seat a man who did not receive one-third of the >otes of the Legislature upon the doctrine of the En~lish cases, when those cases and the ·case before us stand on wholly different founuationa. 

The Senator from Ohio here said that this doctrine of seating the 

minority man was antirepublican and in violation of the very first 

principles of republican government. If I were to try, I could not 

state the law so broadly and strongly as he has done, and yet the Senator from Ohio, with all his learning, did make a mistake in regard to 

the English law because he gave to it a force and an effect that it never ha4; and I will call the attention of my friend from Delaware 

[Mr. BAYARD] to the reference he made the other day. I have here a late English case in which this whole doctrine is discussed at great 

length and with ability and it is just as much against the claim in 

this case as are the American cases. I refer to the case of The Queen vs. The :Mayor, Aldermen, and Burgesses of Tewkesbury in the law 

reports of 1867 and 1868. This case was decided in 1868 : . 

Held, that the mere knowledge on the part of the electors who voted forB, that 

he was mayor and returning officer did not amount to knowledge that he was dis· 

qualified in point of law as a candidate; and therefore their votes were not thrown 

away, so as to make the election fall on the fifth candidate. 

And this whole case, as I will read, goes to show that mere knowledge of the fact that a man holds an office which disqualifies him 

does not make the votes given for him void. The voters are not presumed to know the law, but it must be shown.thaj; they knew the law as well as the fact, and the doctrine that all men are presumed to 

know the law does not apply to a caae of that kind. I will now ask 

the Secretary to read what I have marked, but before reading the 

whole case I want to read a little summary from it in the conclusion, 

though I desire the whole case to go into my remarks because it dis- cusses the whole question of presumptive knowledge of the law. The 

court say in conclusion : 

But it does not seem to me consistent with either justice or common sense, Ol' 

common law, to say that, because the e voters were aware of a certain circumstance, they were necessarily aware of the disqualification arising from that circumstance, and that therefore their votes are to be considered as mere nullities. 

Upon this ~oond I do not think the votes given in ignorance that Blizard was in 

law disquali,fi.ed are made out to have been wholly thrown away, and that Mo01·e is entitled to act as town councilor. 

There the officer who was disQualified presided at the election. His 

presiding there gave notice of his disqualification. The fact was known to all the electors, because the disqualified officer waa there in 

the performing of the act which disqualified him. That is to say, he 

could not be a judge in his own election. . And yet the court held that 

the voters were not presumed to know the law that made that fact a disqualification. I will now ask my friend the Secretary to read 

commencing page 635, from the~ to the conclusion of the case. The Chief Clerk read as follows : 

It is therefore neces8ary to decide whether the mere knowledge of the fact that 

Blizard was the mayor and returning officer must be taken to involve knowledge of 

bis being disqualified for election. Every elector in the borough must have known 

that Blizard was the mayor, and every elector who saw him presiding at the election must have known as a fact that he was the returning officer, and every elector who was a lavryer, and who had read the case of Reg. vs. Owens, would know that 

he was disqual.Wed. From the knowledge of the fact that Blizard was mayor and 

returning officer was every elector bound to know as matter of law that he was disqualified W I agree that ignorance of the law does not excuse. But I think that in Martindale va. Falkner, Maule, J., correctly explains the rule of law. He says: "There is no presumption in this country that· every person knows the law; it 

would be contrary to common sense and reason if it were so. In Jones vs. Randall, ])unning, ar[J1.1£1ldo, says : 'The laws of this country are clear, evident, and 

certain j all, the judges know tbe laws, and knowing them administer justice m th 
290 CONGRESSIONAL RECORD-SENATE. DEOEl\IBER 19, 

uprightness and integrity.'" But Lord Mansfield, in delivering the judgment of 

the court, says: "As to the certainty of the law mentioned by Mr. Dunning, it 

would be very hard upon the profession if the law was so certain that everybody 

knew it; the misfortune is that it is so uncertain that it cests much money to know 

what it is, even in the last resort." It was a necessary ground of the decision in 

that case that a party may be ignorant of the law: The rule is that ignorance of 

the law shall not excuse a man, or relieve him from the consequences of a crime or from liability upon a contract. There are many cases where the giving up a rloubtfnl point of law has been held to be a good consideration for a promise to pay 

money. Numerous other instances might be cited to show that there may be such a thinrr as a doubtful point of law. If there were not, there would be no need of 

conrts"'of appeal, the exist~nce of which shows that judges may be ignorant of law. 

That being so, it woulu be too much to hold that ordinary people are bound to know 

in what particular court such and such a practice does or does not prevail. I take this to be the rule of law applicable to this case. I think the knowledge that .Blizartl was the mayor ts clearly brought home to every voter, but the ques· 

tion iR not merely whether every vote given for him was thrown away in the sense that it was given for a disqualified candidate-in that sense it was undoubtedly thrown away; but whether it was thrown away in the same manner as if the vote hall been given for a dead man, or had not been given at all. I think that where a voter is informed that a certain circumstance in point of law disqualifies a candidate, even although he may hold a different opinion, yet if he afterward votes for 

that candidate, big vote is thrown away. In the present. election a voter may possibly have been told by the one party that Blizard being returning officer could not be elected, by the other party that he could be ; if this could be shown the vote would be thrown away;. but the case merely shows as a fact that Blizard was re- turning officer, from which a lawyer would be aware thtt he was disqualified, and, 

in my opinion, the knowledge that Blizard was returnmg officer does not in law 

necessarily involve the knowledge that he was disqualified. It must be observed that when a voter is said to have notice of disqualification 

in a candidate, the word notice is ambiauous. In Rex '118. Hawkins the question is 

thue stated: "If the law be that at the election of corporate officers the votes given for an incapable candidate, after notice of such incapacity, are to be considered as thrown away, i.e., as if the voters had not given any vote at all, then this 

will be a good election of Spicer; unless the time when notice of his incapacity was given, namely, after two persons had given their votes for each of the candidates can be considered as making any difference." 

The general proposition, that votes given fora candidate after notice of his being ineligible are to be considered as the same as if the persons had not voted at all, is 

supported by the oases of R!l~· '118. Boscawen, Easter, 13 Anne; Reg. vs. Withers, 

Easter, 8 Geo. 2; Taylor vs . .ru.ayor of Bath, M. 15, Geo. 2; all which are cited in 

Uowper, 537, in Rex. vs. Munday, in the first Boscawen 'V8. Roberts the two candidates had an equal number of votes; but because Boscawen was incapable, the votes given for him were considered as thrown away, antl the other dn1y elected. 

In the second case, Withershad5votes ontof 11; and the other 6 refusing to vote at all, the court held Withers duly elected, and that the 6 who refused to vote were virtually consentina to the election of Withers. 

In the third case, Taylor, Bigg, and Kingston were candidates. Biggwas objected 

to, as a disqualified person; notwithstanding which, Big~. had 14 votes, Taylor 13, 

and Kingston only 1. There Lee, C. J., at nisi prius airected the Jury that if 

they were satisfied that the electors had notice of Bigg's want of qualification they should find for the plaintiff, (that was Taylor who had only 13 votes,) be- cause Bigg, not being qualified, was to be considered as a person not in esse, and 

the voting for him a mere nullity. The jury found for the plaintiff; and the court, on motion for a new trial, agreeu with the law as laid down by Lee, C. J., andrefu ed a new trial. 

The whole of this reasoning goes to show that those who voted for the disqualified candidate, knowing of his di qualification. were to be treated as voting for a per on not in esse, so that there must be an actual knowledge of his disqualification in law. .And Lord Eldon similarly grounds his decision on the fact that the 

majority knowinglf voted for a disqualified ,candidate, or, as he terms it, "for a dead man." Certainly he seems to have thought that the ratio decidendi was the 

knowledge of thedisqualificationin law, and that the votes given with that knowledge were mere nullities. 

In Reg. vs. Coaks, Lord Campbell, C. J., says: "Blake wae, in fact, a candidate, 

but he was an alderman. and therefore, ineligible, and that fact was known to the 

electors. Now it is the law, both the common law and the parliamentary law, and 

it seems to me also common sense, that if an elector will vote for a man who he 

knows is ineligible, it is as if be did not vote at all or voted for a non-existent per- son; as it has been said, as if he gave his vote for the man in the moon." 

It seems to me that Mr. Campbell's opinion was this: The rea on why the vote given for a. dead man is not to be counted is that the voter knowingly votes for a person whom he knows to be incapable of election, and therefore the resn1t is the arne as if he had not voted at all. Voting for a dead man or for the man in the moon are expressions showing that, in order to make the vote a nullity, there must be willful persistence against actual knowledge. But it does not seem to me consistoot with either justice, or com..ms>n sense, or common la.w t() say that, becau e the e voters were aware of a. certain circumstance, they were neceHsarily a. ware of 

the disqualification arising from that circumstance, and that therefore their votes are to be considered as mere nullities. Upon this ground I do not think that the votes ~iven in ignorance that Blizard was in law disqualified are made out to have 

been wholly thrown a. way, and that Moore is entitled to act as town councilor. 

Under these circumstances tho election ought to be considered as void and a. new l'lection oup;ht to be hold. 

LUSH J. I am of the &'liDe opinion. w~ have not the mate~ before us to en- able us to finu out whether the prosecutor had a majority over the legal votes given 

for his opponent~ the notice of disqualification not having been published before the 

election commenced; therefore it becomes necessar~ to ascertain what is the principle governing the decisions in tho cases cited, ?-n which it was held that votes given for a candidate whom the voters knew to be aisqualified are thrown away, that is, are to be treated as if they ha.d not been given at all. The fact that Blizard, who 

presided at the election, was mayor, waslrnown to all the voters ; and it is nec- essary to decide whether the vote, gi>en by an elector who knows a fact which, by co11struction of law, operates as a dis!l~~fication of the candidate, is of itself a mere nullity, or whether, in ord~r to nullity the vote, it is necessary that the elector 

should be aware not only of tlie fact, but also of the legal con equences annexed to~ • For the reasons given by my brother Bla(}kbnrn, I am of opinion that it is not enough to show that the voter knew the fact only, but that it is necessary to show 

sufficient to raise a reasonable inference that be knew the fact amounted to a disqualification. It cannot be sairl in all cases that the mere knowledge of a fact 

which, in law, (lisqualifie a camlidate must be taken to be knowledge of all the 

accompanying circumstance . That would be a st~p far beyond tho principle in 

tho cases cited, which show that, in order to nullify a vote, it must ue proved that 

tb person giving it must have known that he wa.s doing an act of no avail what· ever. • A maxim has been cited which, it has been urged, imputos to very person a knowledge of tho law. The maxim is ignorantia legis neminem cxcusat, but there 

is no maxim which ays that, for all intents and purposes, a p rson mu t be taken to lrnow the 1 cral cons qnences of his acts. llere the voter's ~orance of th disqualification of the candidate does not make his vote valid; but 1t is a very dilli t·ent question whether we are to ay now that the candida.to who was in the minority is to be declared duly elected, anll. that those persons who voted for Blizard must bo 

taken to be in the same position as if they had not voted at -~~J merely because they knew the fact from which, by construction of law, the disquati.ncation arose. Therefore, I am of opinion that the mandamus cannot issue.-The Queen vs. The Mayor, 

Aldermen, and Burgesses of Tewkesbury; Law Reports, Queen's Bench, 3, 1867-'68. 

Mr. MORTON. I refer to that case to show that under the broadest 

construction of the English law it furnishes no ground whatever for 

this action in OreO'on. In whatever wa.y we look at this case, it seems to be utterly indefensible. In tho first place the statutes of Oregon 

require the governor to certify who received the highest number of 

votes. His duty was simply ministerial. He had no power to judge as to the disqualification of a candidate for elector, for Congres , for 

supreme judge, for State officers, for any office whatever. He was to certify to the election of the man who had the greatest number of 

votes, and then the law required that that certificate should be delivered not to an individual member of the electors but to the college 

of electors, to the electors when assembled, and not to be delivered to a pretender to be carried off by him, but to be delivered to the college 

which would be to the majority ofthe electors, but this law of 01'egon was expressly violated. 

The PRESIDING OFFICER, (:Mr. WRIGHT.) The question is on tho amendment proposed by the Senator from Delaware [Mr. BAYARD] to the amendment of the Committee on Privileges and Elections. 

1\Ir. BOGY. M:r. President, I would like t.o make an inquiry of the 

Chair first as to the condition of the question before the Senate, and 

whether the amendment of the Senator from Delaware is now pend-

~g. 

The PRESIDING OFFICER. The question before the Senate is on the amendment proposed by the Senator from Delaware to the 

amendment of the Committee on Privileges and Elections .. :Mr. BOGY. There being two amendments, of course the propo ition 

cannot now be amended further. I would like to offer an amendment which I will move later, if nece sary. 

I do not rise, Mr. President, after this question has been discussed so lengthily and so ably, to do more than to add a few words to vindicate the conduct of the governor of Or~gon. In my estimation, he 

did his duty with perfect honesty; he could have dono nothing less 

and be a faithful public officer. 

Much learning has been displayed on this question; many authorities have been cited and very able arguments have been advanced 

upon both sides; but at last the question is simply this: An election was held in the State of Oregon for electors of President and VicePresident, that State being entitled to three electors. One of the 

candidates was clearly, beyond all doubt, beyond all dispute, (and no man denies that fact,) ineligible because he held an office of profit 

and trust under the Government of the United States. Tha.t being 

so, he wa.s clearly ineligible. Yet he received a maJority of the vote~ 

cast in the State of Oregon; a majority of 1,049 votes. That fact is 

made to appear by the returns. The next step which bas to be taken 

necessarily is the evidence of tho election of the e electors. That 

evidence is supplied by the governor of the State. He, under his oath 

of office, is bound to give the certificate not to the person who has re- ceived the highest number of votes, but to the person or persons who 

shall have been elected. Now can it be said by anybody that Mr. 

Watts was elected when the Constitution says that he cannot be 

elected, and that he is not eligiblef In that case what is the governor. to dot To certify that :Mr. Watts had been elected was to certify to 

that which was false. He could not have done it under his oath of 

office, because Watts had not been elected and could not be elected. 

He was not eligible any more than if he had been a non-resident of the 

State and never had been in the State. He was disqualified by the Constitution, and the votes given for him were a mere nullity. Gentlemen 

may say w bat they plea.se, quote a.a many authorities and as much law as they please, a,nd argue as they please, the fact is that he was not 

elected because he was not eligible, and not capable of being elected. 

What was the governor to do f He could not certify to his election. 

These gentlemen say he had then no right, under the decisions mado 

both in this country and in En~land and in accordance with the weight 

of authority, to give the cert1ficate to the next highest person who 

had been voted for. Now, without arguing that point at all, it is un- doubted that there has been very great diversity of opinion on that 

subject. 

Some contend that it turns upon the point as to the knowledge of 

the voters in Oregon whether Mr. Watts was eli~ible or not. I do .not 

believe that that is the law in a case of this kind. I do not believe 

that that is the law where the person voted for is ineligible by the 

fundamental law of the country. Everybody is presumed to know 

the provisions of the Constitution. Whether they knew them in 

Oregon or not, it is presumed to be known as well there as everywhere else, and as he was ineligible, the voters were presumed to 

know the fact. Being clearly ineligible, the votes given to him aro nullities and amount to nothing at all. Now the State of Oregon i 

entitled to three votes. 'fhe governor of the State by his action couhl ecure three votes to the State, or by his non-action the State woaltl 

have but two votes. 

Gentlemen argue that umler the law of Oregon the remaining two 

electors conld have supplied the vacancy by an election. The Senator from Oregon argue that at length; and the Senator from Indiana 

argues it with ability and with great zeal; nevertheless, in my humble opinion, these two gentlemen arc entirely mistaken as to tho law 

' 
1876. CONGRESSIONAL RECORD-SENATE. 291 

of Oregon. It seems to me that this law is so plain that it is not a matter to be argued. It has been ·read very often; but as it is the 

turning point in this case, I will read it again: 

The electors of President and Vice-President shall convene at the seat of govern- ment on the first Wednesday of December next after their election, at the hour of 

twelve of the clock at noon of that day, and if there shall be any vacancy in the 

office of an elector, occasioned by death, refusal to act, neglect to attend, or otherwise, the electors present shall immediately proceed to fill, by viva voce and plural- ity of votes, such vacancy in the electoral college. 

The Senator from Oregon commented with severity upon the change 

of language used by the governor of Oregon in a telegram, I presume, 

seut to a paper in New York. I believe the construction of the gov- ernor of Oregon is entirely correct. I will now explain my understanding of this law: 

If there shall be any vacancy in the office ?f an electorThere must have been "an elector." The Senator from Indiana 

speaks of the law of Missouri being different, because it says '' an elector appointed." Although the word "appointed" is not here, it means it. Why f Because a man cannot be an elector unless he has 

been appointed to be an elector. The vacancy to be filled may be oc- casioned by death. By the death of whom f Of the elector. So by 

"refusal to act." Of whom f Of the elector. "Neglect to attend f" 

Whose neglect! The elector's. ''Or otherwise." Whether an elector 

is prevented by death, neglect, or otherwise prevented, that vacancy, so occasioned, is to be filled; and whatevermay bethecausewhythe 

elector does not attend, whether on account of death, resignation, re- fusal to attend, insanity, matters not. It might have been insanity. 

He might have got drunk and been unable to go there and attend. 

Mr. MITCHELL. Will the Senator yield to ~e a moment to ask a question f 

1\fr. BOGY. I am willing. . :Mr. MITCHELL. The Senator from Missouri says there must be a vacancy in the office of elector. I want to know from the Senator if 

the office of elector is not a continuing office existing all the time in 

each of the States to the number of the representation of that State 

in Congress, and if there may not be a vacancy by a failure to elect 

the requisite number by the people just as much as in any other wayf 

Mr. BOGY. I have no question that the law could be drawn to provide for just such a case as took place in Oregon ; but take the law as it is, and that law says tliat if there be a vacancy in the office of an elector-not a va.cancy in the electoral college, but in the office of an elector-presuming, admitting, and the whole argument is founded on this, that there must have been an elector who has died, resigned, or re- fused to act, then there is a vacancy because he has died or refuses to 

act, and so he creates a vacancy by his act or he neglects to attend and 

he creates a vacancy because he does not attend; and who in the name of common sense can give any other construction to this f There is no lawyer in the world acting as a judge who would not so hold, not even the Senator from Indiana; but I mll not say that because he is a judge; he is the chairman of the committee to investigate this matter, 

and! amalittleastonished-lsay it without being his censor at all-it seems to me a very strange position for the chairman of the committee 

who is to be the presiding judge to pass on this question that he should 

construe it before the case is submitted to him, before ithaa been ar- gued, and before th~ facts are presented. We know his opinion beforehand. 

.Mr. President, there is no room for doubt. On a question of th.is kind 

submitted to an impartial tribun~l there would be no room for doubt. 

It must be a vacancy of an elector occasioned by death, occasioned by 

refusal to act, occasioned by neglect to attend, or otherwise occa- sioned; nothing more and nothing less. 

:Mr . .MITCHELL. It is a vacancy in the office, is it not T 

Mr. BOGY. A vacancy iu the office, of course. if an elector has died, 

I take it, his office is effectually vacant. · Mr. ltllTCHELL. Or if there has been none elected, then it is effectually vacant, is it not f It is a continuing office, existing all the 

time, as long as the Government stands. 

Mr. BOGY. It may not continue. If there had been but three can- didates in that State and one of them had not been eligible, certainly 

but two could have been elected and one could not have been. . .Mr. MITCHELL. Would there not then be a vacancy in the office 

of etector in Oregon T 

Mr. BOGY. I do not know that there would be. Under this law 

there would not be. If the people of Oregon had voted for two electors, being entitled to three, although in fact there would be a vacancy, 

in law there would not b& under this statute. Certainly there would 

be no vacancy there, 'because if a certain man had never been elected 

he could not have died w bile elector, he could not have refused to act, 

he could not have neglected to attend, or he could not otherwise have 

been kept away from that place, because he never existed. The law 

of Oregon and the law of Missouri, although not in the same language, are virtually the same. The law of Vermont, the law of Rhode Island, 

the law of Oregon, the law of Missouri, and the law of Michigan-! 

have examined them all-are substantially the same. Mr. MITCHELL. May I ask the Senator one other question 7 The 

Senator, I concede, will presume that it was within the province of 

the Legislature of the State of Oregon to determine what does and 

what does not constitute a yacancy in the office of presidential elector or any State office in that State! 

Mr. BOGY. That it is competent for the Legislature to provide 7 

Mr. MITCHELL. That is, what shall or shall not constitute a va- cancy. The Senator will concede that, I presume f 

Mr. BOGY. I not only concede that but I go further; I think the 

law of Congress on that subject is a nullity. f 

Mr. MITCHELL. Now I want to know if the Legislature of the State 

of Oregon has not provided in the very code on the Senator's desk as to what shall and what shall not constitute a vacancy, and if it does 

not include in the class of cases the case where the election is void, 

where a person for instance is voted for who is ineligible. Does not 

the act of the Legislature of the State of Oregon plainly provide that 

in a case of that kind, when the void election is declared void by a competent tribunal, then there is a vacancy in that office f 

Mr. BOGY. The Senator, I think, is a very singular logician or I 

am, one or the other. 

Mr. MITCHELL. That may be. 

Mr. BOGY. I admit that under the Constitution of the United 

States clearly the States have the right to provide for a case of this 

kind. The States have the sole right to provide the mode and man- ner of appointing electors. The Legislatures have the right to appoint the electors themselves. The Legislature of a State might 

authorize the governor to appoint the electors. They might authorize any man in the· State to appoint the electors. That power is 

given to them without limit. Having the power to appoint electors, as a matter of course they have the right to provide how any vacancy 

may be filled. There is no question about that. While I admit that, 

I do not admit that the Legislature of Oregon bas done that thing. 

That is the point. I think they have failed to do it. I think they 

failed to do it in Rhode Island ; I think they failed also in Vermont. Mr. MITCHELL. I call the Senator's attention to that provision 

of the statute which provides what shall constitute a vacancy. 

Mr. BOGY. It is what I have been trying to read. I have been 

trying to get it into the Senator's head. 

Mr. MITCHELL. The Senator is not reading from the same statute 

I am talking about. There is another statute m the same book, on a separate page, in a different section, which goes on to provide what 

shall constitute a vacancy, and one of the cases included in that provision is where the election of the person voted for is void for any reason. 

Mr. BOGY. Will the gentleman show me that law 7 

Mr; MITCHELL. I will with pleasure. It is on page 709 of the 

code of Oregon. It provides as follows : 

Every office shall become vacant on the happening of either of the following events before the expiration of the term of such office: 

1. The death of the incumbent; 

2. His resignation; 

3. His removal; 

4. ID.s ceasing to be an inhabitant of the district, county, tow-n, or village, for 

which he shall have been elected or appointed, or within which the duties of his 

office are required to be discharged; 

5. His conviction of any infamous crime, or of any offense involving a violation 

of his oath ; . 6. His refusal or neglect to take his oath of office, or to give or renew his official 

bond, or to deposit such oath or bond within the time prescribed by law; 

7. The decision of a competent tribunal declaring void his eJection or appointment.-GeneraZ Laws of Oregon, chapter 13, title Vll, section 45, page 709, 710. 

Mr. BOGY. Now, Mr. President, that just shows how weak this case is. The other law in relation to electors stands by itself, a law com- plete in itself, made for a very different purpose, and it is attempted 

to be sustained by a law providing for the mere ministerial officers of 

the State. Under this law many of the offices in Oregon no doubt 

might be filled either by the governor or the Legislature as the law 

provides if there be a vacancy caused by death, resignatiop, or ineligibility; but does that control the law standing by itself, made for a purpose independent, important, which is intended to cover the 

whole ground and which is complete in itself¥ I hope the Senator will excuse me if I am compelled to call that pettifogging. I do not mean to be offensive, but it is nothing else. The law in relation to elect- ors stands by itself, intended to provide for the ele4ftion of the highest 

officers in the Government. The office of elector is the highest office in our Government. It is in some respects higher than the Presidency 

because it makes the President. In accordance with the theory: of our Government the elector was to be an independent man voting for 

whom he pleased, and the position of an elector in theory was to be 

the most elevated, the most dignj.fied, the most responsible position 

that a citizen of this colll).try could hold under the Constitution. The 

law of Oregon, like the law of all the States, provides that· if one of 

the persons chosen to this high office- is unable to discharge the duty 

imposed upon him Ly law the remaining members of the college of 

electors shall fill his vacancy. But there must have been an election. 

How was it in Vermont! I have not the law of Vermont before me, 

but I have read that law and there the Legislature was called· together for the purpose of passing a law authorizing the vacancy to be 

filled in a case precisely similar to the case in Oreo-on. · ·Mr. MITCHELL. The Senator is mistaken. The law of Vermont 

was dissimilar to that of Oregon, was not like it. The Legislature were called together and they made it like it, and then the other elect- ors filled the vacancy. That was all there was about it. · Mr. BOGY. It is not a very proper way to argue for one gentleman 

to assert a thing to be a fact and another to deny it to be a fact. 

Mr. MITCHELL. - I simply think the Senator was mistaken. 
292 CONGRESSIONAL RECORD-SENATE. 

j .£ 

DEOE!\IBER 19' 

Mr. BOGY. I said the law of Vermont was substantially the same Now it is not worth while here, and there is nothing gained l>y it I as that of Oregon, not in the same words. These laws are not in will tell the Sen.ator from Oregon, to try to make this a fight as against 

the same words, but throughout the United States the law upon this Governor Grover personally. I do not know him; but I have seen subject is pretty much similar for a very good reason. Many years nothing that bas come before my eyes that tells me in the slightest 

ago nobody ever dreamed that this question would ever come up. It manner that hedidnot do his duty. On the contrary, we do knowthat was supposed that a vacancy in the office of elector might be created he took a long time to investigate; we do know that he consulted the 

by death, by resignation, by inability to attend, or otherwise; but it best legal minds of the country; and that he sent away to the valley was not believed that persons would run for the office who were not el- of the Mississippi for the opinion of one of the best jurists in that ~ible; and hence no provision was made for a vacancy of that kind. valley. My fr-iend from Indiana may laugh at him as much as he 

There is none in my State, none in Vermont, none in Rhode Island, pleases. I know no lawyer in Indiana his superior as a lawyer. My none in :Michigan. I have the law of Michigan before me. I say, ac- friend spoke rather lightly of Indiana a little while ago, for he said 

cording to my understanding of the law of Vermont, it is the same . that even in Indiana this would not be law. as the law of Oregon. There ;1 person was voted for as an elector Mr. MORTON. I said the Indiana case would not go to the extent 

who was not eligible. The Legislature was called upon to assemble claimed here at all. 

for the purpose of passing a law authorizing that vacancy to be Mr. BOGY. We do know that Governor Grover took this case under 

filled. That law was pas ed under the act of Congress found in the advisement for a long time, that he consulted the best legal minds in 

Revised Statutes, and I think it is a very doubtful question, one the State, and also one of the best legal minds in the valley of the Miswhich I intend by an amendment to this resolution at the proper time sissippi. I have not the honor of knowing Judge Hoadly per onally, 

to submit to this Committee on Privileges and Elections. We might but the Senator may know him, and if he does not know him personget the opinion of the chairman of that committee before he .starts to ally he knows that he is a man of fine reputation1 one of the finest 

investigate the matter. The law of Rhode Island is virtually the same. intellects in our section of the country, and one ot the best lawyers. 

Now look at the decision of the supreme court of that State on that Mr. MORTON. I never heard of it. 

very subject. The supreme court of Rhode Island, upon a law virtu- Mr. BOGY. There are many things you and I never heard of. 

ally and substantially the same as the law of Oregon and of every [Laughter.] It is nevertheless true. The Senator has been out of the 

other State, says: profession many years, and I doubt if he is familiar with the men who 

Before any person can decline under this section- have acquired distinction in the law in the last ten years. They ha.ve . . . . grown up since he has become a public man. The fact is that Judge A section author~illg th~ electors of that State to fill a vacan.cy ill Hoadly in the city of Cincinnati stands the peer of the best lawyers case an elector declines or 1B prevented by any cause from <Servrng- in that city. Now in view of all the e facts that are k11own, it is not 

be must be elected. worth while to be finding fault and trying to make it appear that this 

So say the supreme court of Rhode Island. gentleman occupying the high office of governor of that distant State 

And no person can be elected who is ineli!rible or, in other words, incapable of has been guilty even of telling lies as the Senator from Oregon has 

being elected. Resignation, said Lord Cock~nrn, chief-justice, in The Queen vs. intimated this morning, of telling horrible lies unworthy not only of 

Blizzll!d, L. R, .2 Q. B., 55, implies that t~e person re.signing. ha.s been ~lected unto a governor but unworthy of any man. the office he resigns. A man cannot resign that whicli he 18 not entitled to and :M :MITCHELL 1 d · d t h ] cr which he has no right to occupy. We think the disq.nalification is not removed by r. · I no. use any sue anguaoe. . . the resignation of the office or trust unless the office 1s resigned before the election. Mr. BOGY. The Senator d1d not use that language, I adm1t; I d1d 

The language. of the Constitution is t~t no person holdin~ an office of trmt or pr~fit not intend to say that he did ; but his remarks were in tended to make 

under the Umted S~tes shall be allpomted an elector. under our law the election that impression before the countr8" that he had stated falsely with 

by the people constitutes the appomtment. regard to the number of person~ who must have known that Mr. Watts 

This is the decision of the supreme court of Rhode Island, made but was disqualified, that in making that statement he stated that which a short time ago, on the first day of this month, in a case I may say he knew was untrue, and that in plain language was a lie. 

precisely the same. A person was voted for in that State who held Mr. ~fiTCHELL. I simply st.ated the facts. If they convict Mr. an office of trust and profit, and under the constitution was ineligi- Grover of misrepresentation, I cannot help it. 

ble. The case was submitted to the supreme court, and this court Mr. BOGY. That may be so. His effort was made before this Chammade the deci ion I have just read to the Senate saying that a per- ber to show that this officer holding tliis high office had been guilty of son cannot resign that of which he is not possessed, and in that case, telling that which was not true in stating facts. Of course the Sen- a in the case of Vermont, the Legislature passed a law to supply ator did not use the word" lie," but that was the amount of it. It 

whatever was necessary. is not worth while to argue the case in that way. To use the IanThe case of Oregon has been decided by the action of Vermont and guage of the Senator from Indiana, '' We cannot elect a President in 

Rhode Island beyond a doubt. The cases are in every respect the that manner." Ah, sir, there are many ways that modern times ·have same. I have read them all. They are not in the 'Same language, taught us how Presidents are attempted to be elected; but they are but substantially alike, and present a question worthy of being ex- novel. The old way was for the people to vote in their respective 

amined, not only for the effect it may have upon the present contest States, those votes to be counted, the electors to meet and the major- now pending, but as a guide to those who may come after us, and who ity of the electors appointed to speak the voice of the people of the 

may have to pass upon similar cases, and I regret very much, that a United States. But that day has pas ed. How is it in Loui iana Y 

question of this importance, peculiarly requiring cool, calm, impartial How is it in South Carolina Y How is it in Florida One of the men ~nvestigation, has been so prejudged in this body. The proper way sent there by the President of the United States in a letter published 

would have been to refer it to the committee, and let the committee but yesterday admits himself that .the State of Florida voted for Tilbe impartial, if a committee of this body can be impartial. den. His own report made to the President of the United States, 

Now, sir, a word with regard to the State of Missouri, so that that which ought to have been sent here as the Louisiana report was SE)nt, case may not be prejudged. In :Missouri we had no doubt that General but which was not sent, virtually admits that Florida cast her vote 

Frost was eligible to the office of elector, and at the proper time we will for Tilden. In the report published but yesterday Mr. Barlow admits 

state the case before the committee. It is not worth while to argue that Florida voted for :filden. We know the fact that, as far as tho 

it in advance; but there can be no doubt that he was eligible under vote is concerned, the people of Louisiana voted, by a. majority of 

the Constitution, under the law, under the fourteenth amendment, about eight thousand votes, for Tilden. ~ncl yet what haa become 

and under all conditions and circumstances, as much as any other of that vote f A returning board there is commended; its decisions 

citizen of the United States could possibly be; but so as to avoid any are held equal to those of the Supreme Court of the United States, 

controversy, unuef our law he failed to attend and his vacancy was and when the governor of Oregon, acting in obedience to law, doing 

properly filled. Nevertheless, if he were not eligible there would be that which he was compelled to do and could do nothing else, is cen- no vacancy such as was contemplated by the law of Missouri, because sured and is held up here as a man who has disgraced his high office n·o elector had been appointed in that case standin~ exactly as the and acted unworthily. 

law of Oregon stands. If it turn out on investigatiOn that General Ah, 1\Ir. President, that . will not do. The people of the United 

Frost was not eligible, then Missouri will lose one of her votes, as I States, it seems to me, expect that we in Con~ress will meet this 

contend under th& condition of things Oregon would have lost one of question in a different way. As far as I am individually concerned, 

her votes if the governor, acting I have no doubt fromhighpatriotic if I am satisfied that Mr. Watts is eligible under that law and that 

motives1 had not used his official power to secure to the State its-due the remaining electors had the right or the power under that law to 

weight ill the electoral college. If it be true-and who denies it f- fill that vacancy, if it can be so called, I, as a Senator, would give that Mr. Watts was not eligible, Oregon had voted then for but two to the State of Oregon three votes for Mr. Hayes and would not hesielectors, and if it be so, as I contend, tbat under the law of Oregon tate at all. 

this vacancy could not l>e filled by the two remaining electors, it be- Mr. MITCHELL. Will the Senator object to giving way for a came the duty of the governor to use. the power of his office to pre- motion to adjourn f It is so late thj),t we shall not be able to get a serve to his State its due weight in the electoral college, which was vote to-day, and I do not think it worth while for us to remain ~ny 

three votes, and if he had not done so Oregon would have been cut longer. 

down to two votes. To secure that he was compelled to do that which Mr. BOGY. I am nearly through now; but if I start again in the 

he did do. I contend that he was compelled to do it under the law. morning, I cannot tell ho.w long I shall talk. [Laughter.] But I will 

In addition to the law he certainly must have been influenced as a give way to a motion to adjourn. · patriotic man by what was due to his State, for otherwise that State Mr. MITCHELL. I move that the Senate adjourn. 

by the action of the people of Oregon themselves would have been The motion was agreed to; and (at four o'clock anu fifty-five min· 

cut down to two votes. utes p. m.) the Senate adjourned.