1873. CONGRESSIONAL RECORD. 19

into that legislature and ratified the action of the governor in recog­ test of the minority on this floor against it, what will be the judg­ nizing it, and ratified the action of the legislature that elected .Mr. ment 'I It will be that there is a determination, right or wrong, to Spencer by going in and fusing with them and O?cnpying seats there. continue the majority of this Senate by s8ating gent.lE"men who have The body that elected Mr. Spencer was recogmzed by the governor no claims to seats, or at least seating them before their claims have first. Subsequently it was recognized by the body of men who elected been investigated, and that against the protest of gentlemen here Mr. Sykes. · who believe they are not entitled to have seats in this body. Mr. CASSERLY. I ask the Senator from Nevada if that is not just I hope that the Senate, in justice to its own reputation, in justice as broad as it is long; whether the court-hoQ.se legislature, by fusing to the people of Alabama, in justice to the people of this whole coun­ with the State-house legislature, did not acknowledge the validity of tl·y, will fail to seat as a member of this body Mr. Spencer or Mr. the latter! Anybody else until, by the judgment of the Senate, after investiga­ Mr. STEWART. No; it is longer than it is broad, because there tion, he has been declared legally entitled to his sea.t. As a member were more of the legislature who elected Mr. Spencer than of the of this body I. cannot consent that Mr. Spencer, for whom I have a other; the other went into the minority, ~nd it is the majority that kindly feeling, shall take his seat in this chamber under this state of has a right to elect, and not the minority. They preserved the same facts, until some competent committee of this House have pronounced organization-the same officers; they had the maJority, showing that upon his case. they had the right to act; and their action is the action now of all. Mr. CASSERLY. Mr. President- · They have all come to the conclusion that the body that elected Mr. Mr. CAMERON. Will the Senator give way for a momentf Spencer was the right one, and they are working there with them. Mr. CASSERLY. Certainly. The essence of the thing is that the majority of the legislature Mr. CAMERON. I tried a. little while ago to get an executive ses­ elected Mr. Spencer, and the fact that a minorit.y attempted to elect an­ sion. It is too late for that now, and therefore I move that thG other man shows that they were attempting to disorganize. The gov­ Senate adjourn. · ernor recognized the majority, and the minority attempted to elect a Mr. GOLDTHWAITE. Will the gentleman withdraw that motion man, but subsequently the minority were bound to recognize. the ma­ for a moment'l ["No."] jority,and did so; and it does not loak very well to ask that the action The motion was agreed to; and (at four o'clock and twenty-seven of the minority that attempted to elect a Senator should be put minutes p.m.) the Senate adjourned. ahead of the action of the majority. That is the fact. :¥r. SAULSBURY. Mr. President, it is very evident that this mat­ ter onght to be referred to some committee, a special committee or IN THE SENATE. the standing Committee.on Privileges and Elections. What are the facts presented in this case t The legislature of the FRIDAY, March 7, 1873. State of Alabama consists of one hundred members of the lower house Prayer by Rev. J. P. NEWMAN, D. D. and thirty-three members of the senate. The legislature which The journal of yesterday's proceedings was read and approved. elected Mr. Sykes had nineteen senators and fifty-four members of Hon. JoHN P. STOCKTON, from the State of New Jersey, appeared the house when it organized. That legislature was recognized by in his seat to-day. Governor Lindsay, then the governor of Alabama. Each house had a lawful quorum, organized under the Jaws of the State, and was ELECTION •OF CHAPLAIN. recognized by Governor Lindsay, then the acknowledged governor Mr. MORTON. I offer the following resolution, and ask for: its of Alabama. Thus organized, it proceeded to count the votes, and present consideration: declared the election of Governor Lewis. Governor Lewis, by ac­ Resolved, That Rev. J.P. Newman, D. D., be, and he is hereby, appointed cepting the office thus conferred upon him, recognized the legal Chaplain to the Senate. existence of that as the legal legislature of Alabama. That legis­ The resolution was considered by unanimous consent and agreed to. lature proceeded to count the votes for the State officers that now hold, and are to-day holding, their offices by virtue of an election PAPERS WITHDRAWN. at the hands of the very legislature that elected Mr. Sykes, the On motion of Mr. PRATT, it was -state treasurer, the auditor, and the other officers. They enacted Ordered, That Anne E. Spurgeon have leave to withdraw from the files of the general public laws that are yet in existence; whereas the body, Senate her petition and papers pertaining to her application for a pension. claiming to be a legislative body, which elected Mr. Spencer was con­ On motion of Mr. PRATT, it was stituted of men eleven of whom held no certificate of election, and Ordered, That Andrew Johnson have leave to withdraw.bis petition and papers who have been ruled out by the present fusion legislature as men who relative to an application for a pension from the files of the Senate. never were entitled to sit in an~ legislative body. Two of the sen­ ators who assisted in the election of Mr. Spencer are not members of On motion of Mr. SCHURZ it was the present legislature because they hold no certificate· of election, Ordered, That D. L. Duffy have leave to withdraw his petition and papers from and, lfnder the a-dvice of the Attorney-General of the United States, the files of the-Senate. they were declared wanting in qualifications and do not to-day con­ Mr. WINDOM. I ask to have the following order made: stitute part of the senate of the State of Alabama. And such is the Ordered, That John Lamb have leave to withdraw his petition and papers from fact, I am informed, in regard to members of the lower house who the files of the Senate. . assisted in the election of Mr. Spencer. Mr. SCOTT. I think there was an adverse report in that case. With such a state of facts st-aring us in the face we are bound to .Mr. BUCKINGHAM. Then I suggest that ~opies of the papers be take historical notice of them. We know the fact-we cannot plead ~~ . ignorance of the fact-that those two legislative bodies have been :Mr. WINDOM. There is no objection to leaving copies. fused, and that the members hoMing certificates of election now con­ The VICE-PRESIDENT. That. is the usual order. The order will stitute the true legislature, and that after excluding the men who be made with that modification. held no certificates there never was a quorum in the legislature that Mr. WINDOM. Very well. elected Mr. Spencer. Personally, I have no unkind feelings toward Mr. Spencer; his ORDER OF BUSINESS. conduct has been courteous and gentlemanly. If I were to decide The VICE-PRESIDENT. If there be no further Senate resolutions this question upon individual merits, being acquainted· with Mr. to be offered, the resolution submitted yesterday by the Senator from Spencer and not with Mr. Sykes, I should naturally be inclined to go Indiana, [Mr. MORTON,] and laid on the table, wll now be called up. in favor of the man with whom my relations have always been Mr. MORTON. I will not ask to have that resolution taken up this friendly and kind; but looking at this as a question affecting the morning. . interests of tho people of Alabama, as a question affecting the rights Mr. HOWE. Does not the unfinished business of yesterday come of the people of this whole country, (because if :Mr. Spencer is not up nowf legally entitled to cast his vote here be has no right to come in and The VICE-PRESIDENT. During the morning hour morning busi­ by his vote nullify the votes of gentlemen who are entitled to seats ness is first in order. in this body and to vote upon the public laws of this conn try,) I must Mr. HOWE. Is there a morning hour during an executive session t act on it according to my judgment of the law and the facts. The VICE-PRESIDENT. The Chair believes that in an executive And now with this state of facts staring ns in the face, how can session of the Senate petitions and Senate resolutions would be first we justify ourselves before the world, how can we justify ourselves in order in the morning hour. before the people of this country in seating in our body a gentleman Mr. HOWE. I did not suppose that anything in the nature of le~­ · when the facts of the case clearly show that the legislative body lative business could be transacted during a merely executive sessiOn which conferred upon him an election was wholly illegal, ha-s gone of the Senate. I have no sort of objection, if there are petitions OI ont of existence, ·and has neyer been recognized as a legislative body resolutions to be submitted. de jure by even Governor Lewis or anybody else 'f The VICE-PRERIDENT. The Chair will inform the Senator from These facts are patent; t.he country knows them; and with the Wisconsin that it would not be in order at an executive session for precedent which has been referred to where gentlemen differing in bills to be introduced or acted upon, but petitions and Senate resolu­ thei! politics from the majority on this floor have been denied the tions are in order. This is an open session of the Senate. right, on the presentation of certificates properly signed by govern­ ors, to be sworn in until the matter was passed upon by the proper CREDENTIALS. committee, if the majority of this body, having the power to do it, ad­ Mr. HAMLIN. Mr. President, I rise for the purpose of presenting mit Mr. Spencer in violation of the precedents and of.the rules which the credentials oftheSenatorfrom New York, [Mr. CONKLING,] which they established in reference to politjcal opponents, 'Yith the pro- bavo now been received. I ask that they be read. · 20 CONGRESSIONAL RECORD. MARCH 7,

The chief clerk read the credentials of Hon. RoscoE Cmm.LrNG, any such thing. It does not declare what is the effect of that certifi­ chosen by the legislature of New York a Senator from that State for cate. The statute simply says that whoever comes here claiming a the term beginning Marci:J., 4, 1873 i. and they were ordered to be filed. Senator's seat should bring with him such evidence of his right. Hut I n.nderstand it to be merely directory, not mandatory at all; and I SENATOR FROM ALABAMA. think the usage of the Senate sanctions that construction of the · The VICE-PRESIDENT. If there be no Senate resolntions, the statute. Senate will resume the consideration of the motion of the Senator . I think the Senator from Nebraska [Mr. TIPTON] ma.de a just com­ from Delaware [Mr. BAYARD] to postpone the question of adminis­ mentary upon that rule. If the statute is mandatory, if it does mean tering the. oath of office to Mr. Spencer aa.Senator-elect from Alabama. to tell us that he who would have a seat here mu.st l>ring such evi­ Mr. HOWE. That motion was to postpone until to-morrow, I t.hink. dence, and whoever brings such evidence must be allowed to take his Mr. BAYARD. The Senator .is right. The papers which the Sen­ seat for the time being-if the statute means that, then the Senate ate had sent to the printer have not yet been returned; that is to acted in direct violation of the statute when, for a year, or something · say, the entire bulk of papers sent. One portion of the papers sent, hke a year, it kept the Senator from Alabama [Mr. GOLDTHWAITE] or~ rather, one of the papers included in those sent, was tbe certifi­ out of his seat, who had jnst such a certificate; and it acted in just as cate of election of Mr. Sykes, signed by the officers of the two houses palpable violation of that statute when, only a few days since, it of the Alabama legislature. That came back. The original paper is called to your desk and admini.stered the oath to my distinguished now here on the table of the Cle1·k ; but- the other papers in the case, friend, the Senator from New York, [Mr. CONKLING,] who bad not a the exhibits, &c., have not yet been returned; so that the reason for scrap of paper about him, unless it was l>ank-note paper, or something -the postponement, I conceive, still exists. · of that sort. [Laughter.] Mr. HOWE. Mr. P.resident, considering that motion still before the Mr~ President, my view is different from any of these. I say once Senate, I will submit a very few remarks upon it in addition to what more I think the time to try this question of title is when it is put in I said yesterday. But I must say, to l>egln with, that since yesterday issue; try it always before you award the seat, and not afterward. I h:1ve changed front. Yesterday I was in. favor of the motion to I do nop like the idea of according a seat to a man, and then going on postpou.e ~ anc t so said, for tho reason that I had not had time to read to try whether he has a right to it or not. It i.s not quite so l>ad as wllat was submitted to the Senate by that cil:izen of Ala.l>ama who banging a man and then trying him; but, in principle, it seems to me appears here against the right of Mr. Spencer. I was in favo1· of jost as illogical and just as unreasonable. But when shall yon con­ postponement l>ecause I wanted a n-opportunity to hear what was sider the titl.e put in issue f I think it is put in issue whenever it is alleged against the right of Mr. Spencer. To-day I do not want any so disputed as that you and I do n(jt know what the truth about i£ i.s. further postponement, l>ecause I have bad an opportunity to read the No matter what sort of evidence a man brings here, or what the form ·counter-allegations. Therefore, I am prepared to-day, a~ I was not of the evidence i.s, if you know a State having authority to choose a yestorday, to act upon the application of these contestant!! for a seat Senator has sent him here, that is evidence enough for you to act in the Senate. upon ; it is evidence enough for me to act upon; and we have never But upon the other question on which I commented .somewhat yes­ hesitated to act upon it; it is satisfactory. On the other hand, no terda.y, I 'have not changed front. I still think, as I thought yester­ matt-er what may be the form of evidence brought here by an appli­ day, that wllen an issue i.s raised UJ:?On the right uf any applicant to cant for a seat, if you do not believe that that form of evidence is a seat h_ere, that issue should be heard and should be determined by accorded to him by a State, or if you doubt upon the point, then I the Senate, not after, but before, you decide it; not after, but before, think you ought to stop and l>e informed before you accord him the the Senate aw~rds the seat. That was what I suggested yesterday. seat. A night's reflection has rarther confirmed than .shaken that view. I Mr. President, I said that since the adjournment I had looked into was a little surprised yesterday to finu that it was a view entertained this rue-morial which is laid upon our tables. I may bemi taken about by no single person in the Senate, so far a.s I could discover, except it; !Jut my conclusion upon reading this memorial is, that it does not myself. I think tbere was a very general admission on the part of assign the slightest reason in the world why Mr. Spencer should not the Senate that whenever a man came here with wliat was called take his seat here. It does not amount to an allegation that Mr. a p1·ima-jacie title, with some exceptions, which different Senators Spencer i.s not elected. It does not amount to an affi1·mation that .stated differently, that prima-facie title should be respected, and the the memorialist is elected. What does it say 7 In two sentences, bolder. of it should be admitted to a seat, and then the Senate should if I understand it, it says simply this: that a body of men equal take up the question, and try and d l3 termine it, whether that was a in number to a quorum of the Alabama legislature, each one of whom good or a false title. heM a certificate of election, assembled om~ day and in one place, No two Senators seemed to have the same view as to the limitations and cast their ballots for the meruoriali.st. It does not say that those which should be imposed upon this rule. My distinguished friend certificates were rightfully accorded to the holders. On the con­ from Missomi [Mr. ScHURZ] thought the prima-facie title should be trary, as I understand it, it admits tliat a portion of those certificates, re pected l>y the Senate unless there were grave reasons for distrust­ absolutely necessary to make up a quorum of the legislature, were ing it. If there were gra.ve reasons for distrusting it, then we should stolen, or, what is equivalent to that, obtained without, I will oot say set it aside and try the truth of the ca~e before we decided it. I did the color of right, because, perhaps, it was the color of right, but it was not quite like that limitation, because it seemed to rue a little too in­ so extremely faint a color that whoever reads the papers will hardly definite. It did not seem to amonn t t.o a limitation at all. Of course, catch it.s hue; and that is what I understand to be the case urged each Senator must judge for himself what was the o-ravity of the rea­ here against him who holds the certificate. sons for questioning this certificate. If my fnend thlnksin any given But now, in view of this case, I think the attitude of Senators who case there are grave reasons for questioning the authenticity of a cer­ participated in the debate yesterday was a little peculiar. IIere i~ a ~ificate, that authorizes him to disregard the certificate. If I think, citizen of Alabama coming here with a regular certificate, aud a por­ in the same case, that the reasons are tri yjal, that authorizes me to tion of the Senate say, "Pay respect to that cer~ificate; no matter respect the certificate, to venerate the certificate. what is behind it, give him his seat;" and another portion of the 'l.'be Senator from Ohio, whom I do not see in his seat, [Mr. THUR­ Senate say, "No; it will not do to accord that seat upon a mere cer­ :r.IAN,] had a somewhat different rule, and a simpler one. If 1 under­ tificate, for here is another man who comes from Alabama and says stood his statement of it, it amounted to about this: that the Senate the certificate was not rightly a~corded to its holder." But, when was bound to respect the certificate of a governor and the seal of the you go back to see out of what this controversy aro e, we find tha,t State when it was held by Senator GOLDT.RWAITE, but was not under that committee who sent the memorialist here was a committee the slightest obligat ion to respect it when it was held by Seuator standing upon jnst this certificate, and that the other l>ouy which Spencer. That rule has the advantage of extrerue simplicity; it is assumed to he the legislature of Alabama, and which sent Mr. Speu­ <]nite int.elligible ; there is no need of any one's mi.staking it. In that cer here and ol>tained for him the certificate which he holds, were respect it has the advantage, I think, of the rule suggeste(l by the acting, a portion of them, without such a certificate. If, then, this Senator from Missouri. But I do not quite like either of them. certificate, this prinWrjacie case, is entitled to all that veneration My friend from New Jersey [Mr. FRF.LINGHUYSEN] had still an­ which my friend from New Jersey and my friend from Indiana urge, other ru1e, even plainer, simpler, than that urged by the Senator why were not those men in Montgomery, who held just such papers, from Ohio. His rule is that you should respect the certificate in all the legi.slature of Alabama f You say they did not represent th~ cases. Whoever brings here a. certificate of a governor, countersigned people of their respective districts. Well, I -think that was a very by the secretary of state, and bearing upon its face the seal of the good reason ; l>nt they had the certificates. On the contrary, I want State, saying that be has been chosen by the State as a member of to say to my friends on the other side of the chamber, if certificates this body, that man, no matter what can l>e said to the contrary, are good for the time being, if the people of Alabama ought to have must be allowed to step to your chair, sir, and to take ~pon himself respect for that Montgomery committee simply because they held the the oath of a Senator, to take his seat among us, the Senators; to take certificates of the secretary of state, if these certificates, these prima­ upon himself the obligations of a Senator, though he may in fact facie cases, are entitled to such respect and such veneration, what never have had a vote though in fact his name may never have l>een have they to say against the right of :Mr. Spencer to take his seat mentioned in any legislative body having authorityto choose a Sena­ here to-day, or yest~rday f He h38 the certi:fic te in due aud ample tor. If he hu~ got that piece of paper, we must take off our hats form . to the pa,per; we must clothe him with the prerogatives of a Sena­ .Mr. President, I think if I had been a member of the Alabama tor for t he time being, and let him wear those prerogatives until the legislatme I should not have paid any more respect to tllose certifi­ Senate has trietl the qnestiou of the validity of that certificate. cates than was paid to them by the government of the State, and I Now, Mr. President, I do not like that rule. The Senator from New do not pay such implicit r espect to the certificate held by Mr. Spen­ Jersey urged- that your statute imposed that rnle upon us. I think cer, presenteu at your desk, as some of my friends think ought to be he i.s . mistaken in his view of the statute. The statute does not say paid to it. ~ respect it as a prima-facie title, if you lika that '3Xpre*- 1873. CONGRESSIONAL RECORD. 21 sion. I respect it because it is the best title here urged, and am will­ There was yesterday a cha1lenge, to some facts which I stated upon ing to vote upon it, because I do not find anything urged in the me­ information, thrown out by the Senator from Nevada, [l\fr. STEWART,] morial which invalidates that certificate. who, in very short terms, arraigned the facts I stated as inaccurate. His informant, one of the contesting parties to the cause, was giving A.DJOURN~IENT SINE DIE. him verbal information. On the other hand, there were parties in the chamber giving me information. Now, a great many of the facts Mr. CONKLING. Mr. President, I ask permission to offer the fol­ alleged on either side are to be settled by the record, and that record lowing resolution, to lie on the table: will be contained in a public document which will be on our tables Resolved, That on Tuesday, March 11, 1873, at two o'clock p. m., the President to-morrow morning. For that reason I ask a postponement, with no of the Senate adjourn the Senate sine die. desire to delay the .decision of the Senate one instant of time after Mr. MORTON. I object to the consideration of the resolution to­ there shall have been an opportunity for proper discussion. So far day. from being a waste of time, this will be the wisest bestowal of time. Mr. CONKLING. I do not ask that it be considered to-day. I offer We cannot too carefully consider these questions of a right to a seat it to lie on the table. in this body, with all its high powers and equal responsibilities. It ALABiliA LEGISLATURE. is not simply a. qttestion concerning the individual who cla.ims a 13eat; to him the effect is most trivial as compared with the result on the Mr. COOPER. I offer the following resolution, and ask for its pres­ rights of the people of his State and the rights of the people of all the ent consideration : other States. Resolved, That the President be requested, if not incompatible with the pub1ic It must not be hurried through; there mnst be deliberation upon interest, to furnish the Senate with the correspondence between the Attorney· General of the United States and cert, in part-ied in the State of Alabama, in rela­ it; and if the matter is to go over until to-morrow, I shall defer some tion to the fusion of the two bodies there existing, ea.eh claiming to be the legisla­ remarks that I proposed to make in reply to the criticisms of the ture of said State. Senator from Indiana· upon the act of Congress. I will defer them Mr. CONKLING. I have no objection to the resolution, excepting until the case shall come fully before the Senate. They will not be· of great length. My motion before the Senate is to postpone this case this: I object to it if its p:w~age is to be mad~an argument for de­ ferring action upon the question now pending until all this corre­ uutil to-morrow morning, and I ask that the question be put on it. spondence is sent here and printed. I do not believe myself that our Mr. THURMAN. Before the vote is taken I wish to correct an errol' duty or the public interest requires .this session of the Senate to con­ into which I fell yesterday from not having in my hand the authentic tinue a great while; and I must object to anything which tends un­ information now before me. I said yesterday, in the course of the necessarily to prolong it. Therefore, I suggest that the resolution lie remarks which I submitted, that the senate of Alabama-the unde­ over. niable, lawful senate of Alabama-had counted the votes, showing Mr. COOPER. Mr. President, I offered the resolution at this time Governor Lewis to be elected. I find, upon looking at the constitu­ to avoid the very thing suggested by the Senator from New York, to tion of that State, and the facts in this case, that it is not the senate obtain the correspondence as soon as possible, so that we might have that counts the vote, but it is counted in the presence of both houses, all the light upon this question which can be shed upon it. It was and that the vote was counted in the presence of both houses, there with no intention to delay, but with the earnest desire to arrive at being nineteen senators present, which was a majority of the senate, the facts connected with the whole matter. that body consisting of thirty.three, and there being fifty-three mem­ Mr. CONKLING. I beg to say to my friend that, if he wants the bers _of the house of representatives present, which was a quorum, that correspondence for nse upon any question other than this, it will be body comisting of one hundred members, so that really the case is just as well for him to have the resolution passed at a later day of stronger than I supposed it to be yesterday. The votes were counted this session, because the information will come in the recess and can­ in the presence of a majority of the two houses, in strict pursuance not be utilized until the next session of Congress. If he wants it, in of the constitution of the State of Alabama, and Mr. Lewis was de­ order that we may wait to receive it and have it printed at this clared to be elected governor, and another gentleman, whose name I session before we act on this case, then I object to it. do not at this moment recollect, was declared to be elected lieut~nant­ Mr. COOPER. I have no nse for it in the world except upon this governor ; and upon that canvass aud declaration of the votes made case. in the legislature by which Mr. Sykes was afterward elected, Governor Mr. CO:NKLING. Then I object to it. Let the resolution lie over. Lewis took his seat as governor of Alabama, anu the other gentleman The VICE-PRESIDENT. The Senator from New York objects to took his seat as presiding officer of the senate, as the lieutenant-gov­ the present consideration of the resolution, and it will lie over. ernor of that State. Mr. CASSERLY. After all that has been said, it may be that I SENATOR FROM ALABA.M.A. ought not to add a word to this debate; yet, upon a question like this, of so much moment in every view, it .is perhaps the duty of each l.Ir. GOLDTHWAITE. I would like to inquire whether the docu­ member not to withhold any contribution to the just solution of it ment-s• accompanying the memorial of Mr. Sykes, presented a few which he thinks he can make. I have listened to the debate with great days since, have been printed, and are before the Senate. attention; and I have earnestly considered the whole subject. It is The VICE-PRESIDENT. The Chair. is informed that a portion of a very important one. them have been returned from the printing-office, but not the whole. We have here two claimants for the vacant place of Senator for the Mr. GOLDTHWAITE. Can we be informed when the remaining State of Alabama. One of them, lately a Senator here from that State, papers will probably be before the Senatet relies upon a certificate of the governor of the State, cerOf:ving to an The VICE-PRESIDENT. The Chair is informed that they will be election by one body claiming to be the legislature of the State. The here on Saturday, to-morrow morning. other claimant is here relying upon the certificate of another body Mr. GOLDTHWAITE. I should very much prefer to have all the claiming to be the legislature of the State. The question to be decided · papers before the Senate in this ca-se, in order that this body may de­ is one of interest, undoubtedly, to the claimants themselves, bot it has termine, as it will have to do, the effect of the certificate which has an importance far beyond that, because it involvestbe rightof.theState been already offered and laid on the table by Mr. Spencer as p-rim,a­ of Alabama to be represented in the Senate rightly under her own con­ jacie evidence of his title to a seat. What I want the other papers stitution and laws and the Constitution and laws of the United States. for is in order that the Senate may consider whether those papers, Therefore I have listened with the utmost aitention to everything that (giving to the certificate the full effect which is claimed for it as was said on either side. I have given to all that I heard and all that being prima-facie evidence of Mr. Spencer's right,) upon a full con­ I could gather elsewhere the most studious and impartial coilSidera­ sideration of the other evidence which will be before .the Senate, are tion. I have finally arrived at a solution which is satisfactory, at not sufficient to destroy the presumption arising from the certificate. least, to myself. It is the more satisfactory that it enables rue for the I will, therefore, postpone any remarks of my own until those papers present, and for the purpose of the vote which I shall give at the are before the Senate. present stage of the matter, to put aside all the questions of law or The VICE-PRESIDENT. The question now is on the motion made of fact, either as to the manner in which the governor of the State by tlle Senator from Delaware, to postpone the consideration of the received his title to his office, or as to the legality of the two rival subject until to-morrow. organizations, each claimin&' to be the legislature of Alabama. Mr. BAYARD. Until the papers referred to are before the Senate It seems to me entirely 1dle to say that we have now within our in the Sykes case, which will be to-morrow, as we are informed, I reach any sufficient means for determining the question of the legality will merely remark, in regard to what fell from the honorable Sena­ of the two rival legislatures. Yet that question is the essential ques­ tor from Wisconsin, [Mr. HoWE,] who has been discussing this mat­ tion in this case. The certificate of the governor is nothing but a ter this moTtling, that his r.emarksruust have satisfied the Senate that form; the seal of the State is nothing but a form. The substantial it is essential, before they can pass judgment on this case, that tl1e thing~ the essential thing, and the only substantial and essential thing facts should be before them. They now have a part of the case, but about the whole matter, is the election of the Senator for Alabama. not the whole. They have what we admit to be a p1'inta-facie ca-se; Whether that election was good, or good for nothing, depends upon but whether that first face of these proceedings is not to be chang-ed the question whether it was an election made by a lawful legislature, by subsequent and other matter is a question for them to consider. a legislature competent to elect. Yet this, which is the very question They cannot look at this case in part. They cannot look at this ca!!e upon which everything turns, happens to IJe one ru:~ to which we are in fragments. They must take it as a whole. They must construe wholly destitute of the means for arriving at a just judgment. and consider their duty under the law by the light of all the facts; and Now, sir, for the purpose of what I have to say I shall assume that until the exhibit and the papers connected with the case of"l.Ir. Sykes the certificate of the governor of Alabama, upon which Mr. Spencer are befo1;0 tbn Senate, thsy will not have that information which will relies, is sufficient iu form, and that Mr. Lewis, who gave it, was the p1·ev~nt cavil as to facts. lawful goveruor of tl1e State. I shan also assuwe, for the same pur... 22 CONGRESSIONAL RECORD. MARCH 1,

pose, that such a certificate makes a p1•ima-jacie case in favor of its We shall not adequately weigh the facts that cut down the printa­ holder, Mr. Spencer. That primarfacie case, however, is a mere pre­ facie oaso made by the governor's certificate unless we keep in mind sumption of fact. It is not a conclusive presumption in any degree the circumstances that surround the case. Alabama was in a semi­ whatever. It is liable at all times to be rebutted by contrary pre­ revolutionary condition at the time of the alleged election of Mr. sumption. Down to this point it seems to me that there is no con­ Spencer. She bad two legislatures, and a governor who took his title troversy between me and anybody_who has yet spoken on the subject. from one legislature, and then took sides with the other. The case Any division of opinion to arise must be as to what I am to say next. before us is not to be tried by ordinary rules. It is anomalous. To The qu~stion is, have we here the contrary presumptions to rebnt-I apply to it the ordinary rules of interpretation of statutes and certifi­ do not say to destroy, but for the time being to rebut-the presump­ cates would be a solecism, or worse. The ouly safety is in remitting tion of a prima-facie case in favor of Mr. Spence~ arising upon the both claimants to our committee for its inquiry and report. face of the governor's certificate T I think we have. I freely admit There is nothing in the idea that has been so much insisted upon that it is not e.very idle rumor or loose a.llegation; it is n.ot every by the Senator from New York, [Mr. CoNKLING,] and !believe by the charge of irrelevant matter, or of relevant matter made by Irrespon­ Senator from Indiana, [Mr. MORTON,] that Mr. Sykes is here as a sible parties, which sbon1d be entertained here a.s against the certifi­ mere" memorialist," not as a Senator. Why, sir, is not such talk the cate of the governor of a State showing the election of a Senator. worst word-catching T Is it not the merest hair-splitting that ever It must be something which, in its nature and in the character of those wasT Mr. Sykes is here claiming to be a Senator from the State of making it, is sufficiently definite and grave to put the Senate upon Alabama. He presents his memorial, setting forth his credentials inquiry ; to authorize it, nay, to oblige it, to institute an examination, from the Alabama legislature with the other grounds upon which he so that before it acts it may be satisfied both as to the facts and the law. claims the seat, in respectful and proper terms. He is not to be de­ Have we not just such a case here 7 Who will say that, upon these con­ prived of his right to a seat in this body because he has resorted to flicting credentials, the certificate of the governor of Alabama on the an unusual mode of asserting it. It is unusual, doubtless, bnt it one hand, and the certificate of the body claiming to be, and by many is by no means an unsatisfactory mode. On the contrary, it has believed to be, the lawful legislature of the State on the other hand, relieved some of us at least of a good deal of labor in ascertaining we have not enough, and more than enough, to put the Senate upon the grounds on which he relies, that he ha.s taken the pains to spread inquiry; to oblige it to examine before it acts; to oblige it t-o refer them so fnlly before us. A State is not to lose her Senator in this this case to a nroper committee to ascertain and :report the facts body because one, two, or three Senators, however able and eminent, and the law 7 That cannot be denied. I think that is the proper test seek to cry him down as a "memorialist." The right of every of when the p·ima-facie presumptioa in favor of the governor's certifi­ citizen, the humblest as well a.s the highest, to address the Senate cate must be held to be suspended until the Senate can inquire and of the United Stat-es by memorial in defense of his rights, or in the satisfy itself as to the judgment to be rendered; and that, sir, seems assertion of the rights of others, is absolute and indefeasible. It is too to me to be the principle which reconciles the recent decisions at subst~ntial a thing to be frittered away by a phrase in the mouth of least, by this House, in similar cases. any Senator. In the ca.se of the Senator from Alabama, now in his seat, [Mr. Gor.D­ On these views I rest my vote. Here is a case of so much gravity THWAITE,] he held the certificate of an officer admitted to be the gov­ and difficulty, in which no Senator knows the essential facts, as to ernor, showing an election by a legislature which was admitted all put the Senate upon inquiry, to call for a reference and investiga­ around to be the lawful legislature, and the only legislature, in the tion by a nommittee. It is, therefore, a case sufficient to overcome State of Alabama, and he was here the sole claimant, without any op­ the p1·ima-ja.cie presumption of the certificate of the governor; there­ position or contest as to'his title.· Yet, sir, upon a protest, or something fore I shall vote for the motion to refer to a committee, or I shall vote in that nature, sent here, purporting to be signed by members of the for a postponement until to-morrow, to give us all, m.vself included, legislature of Alabama, not the act in any sense of the legislature further time for the examination necessary 1i9 enable us to form a itself, his credentials were referred to a committee, and he himself was judgment. kept out of his seat, and the State of Alabama was deprived of her This is the safe course. It casts no imputation on either claimant. full representation in this body for ten or twelve months. That must It is our only security against doing a wrong to oitber, and, what is have been upon the idea that the prima-facie case made by the gov­ more vital, to the State of Alabama, and to the Senate as a part of ernor's certificate was for the time being suspended by the allegations the Congress of the United States. on the other side. I think the Senate went very far indeed, too far, in There is nothing in the practice of the Honse of Representatives, that case. I voted against· the reference; I voted against the exclu­ as alleged, of admitting every persqn who presents himself with the sion of t.he Senator from Alabama from his seat in this body. That certificate of the proper officer. From the great number of that case was the very strongest of all the recent precedents in this body Honse any other course would be impracticable. The case iii that that can be cited. House is a case of necessity; and yet even there, as everywhere in Another ca.se was the case of the election of the Senator ft·om Texas, the instance of a legislative body, it is a very grievous evil, even · [1\ir. HAMILTON.] He was here with a regular certificate of the gov­ though it be a choice of evils, that one or more men shall sit in a leg­ ernor of the State, showing an election by the legislature of the State. islative body and help to make laws, even in cases where the pas­ The Senate allowed the printa-facie presumption arising upon that sage of the act depends on their votes, and yet it shall turn out final­ certificate to be overcome by a telegram from the governor of the ly that the claim under which they sat there was utterly null and State t.hat a void paper in the hands of General Reynolds bad not been void from the beginning. The smaller the body the greater the evil. signed by him through inadvertence, and that he meant to issue to In the Senate it is an evil so great that it is difficult to say that it him the same kind of certificate in every respect that he had previously is not a paramount consideration. issued to 1\lr. HAMILTON. The VICE-PRESIDENT. Tbe question is on the motion of the The next and latest case was the case of the Senator from North ·Senator from Delaware, to postpone the administration of the oath to Carolina, [Mr. RANSOM.] He came here with the certificate of the Mr. Spencer until to-morrow. governor of the State, certifying to an election by the legislature of 1\fr. BAYARD. I a.sk pardon of tho Chair; but, as it was my mo­ North Carolina. 'rhere was no controversy as to the title of the gov­ tion, I think the Chair misapprehends it. It was t-o postpone the con­ ernor, none as to the power of the legislature; and yet do we not all sideration of the case, not the administration of the oath. remember that his case was referred to a committee, where it re­ The VICE-PRESIDENT. The Chair will put it in that form if that mained a long time! It ~as not until after the la11se of many, many is the precise motion. The question is on the motion to postpone. weeks that he was admitted to his seat. Mr. BAYARD. I call for the yflas and nays. · In the last two cases, as in the first case, the Senate decided that The yeas and nays were ordert~d. the prima-facie presumption arising from a certificate of the admitted Mr. BAYARD. I cannot forbear to state to the Senate again that governor, regular and sufficient in form, should be overcome in the it is understood, it having been stated by the clerk at the desk, that one case by a telegram from the governor, or purporting to be from the papers originally laid before the Senate, and sent by its order to him-a most dangerous precedent, as it seems to me-and in the the hands of the printer, have not yet been returned, but will be here other case by a mere contest promoted by an antagonist backed by to-morrow morn.ing. something in the form of remonstrance or protest from a portion of 1\fr. CONKLING. It is aJso understood by me that every element the members of the legislature of North Carolina. that enters into this judgment is before us, and has been for two days In thi~> case we have every element that existed in any of the con­ at least. tests of which I have just spoken in which the Senate uniformly Mr. BAYARD. That is the understa.ndin~ of the Senator from New adopted the course of a reference to a committee to inquire andre­ York. I beg leave to disclaim that as bemg mine, or that of many port. We not only have every element that was there, but we have others around me. more. We have the solemn cl3rtifioate of a body purporting to be Mr. CONKLING. When I speak of my understanding, I speak for the general assembly of the State of Alabama, declaring the election myself, and not for my honorable friend from Delaware; and therefore of another person than the person who holds the governor's certificate. I said that my understanding was, and is, that every element of which I speak, of course, of Mr. Sykes. our judgment can be composed is l.Jefore us, and, I repeat, I speak only The question is, shall a state of facts in the present case much more for myself. potent to overcome the technical presumption of the governor's cer­ The question being taken by yeas and nays, resulted-yeas 24, nays tificate, than those which in the three oases I have cited were held :32 ; as follows : sufficient by the Senate to bang up the governor's certificate for weeks and months ·in om· committee, be held insufficient now to send the F~~rJ!~~~ti~laG~i~~~i~~~~~~~'f~~~r,a~:~~t~;:i~l.r~~~: present case to a committee for examination 'I Kelly, McCreery, Merrimon, Norwood, Ransom, Sanlsbury, Schurz, Scott, Steven· son, Stockton, Thurman, antl Tipton-24. That is the question for the Senate to decide, whether the rule NAYS-Messrs. Alcorn, Ames, Brownlow, Buckin~ham, Caldwell, Cameron, works but one way. Chandler, Clayton, Conkling, Conover, Dorsey, Ferry of Michigan, Flanagan, 1873. CONGRESSIONAL RECORD. 23

Frelinghuysen, Gilbert, Hamlin, Howe. Ingalls, Lewis, Logan, Mitchell, Morrill of this law, because it requires that he should receive the votes of a Maino. Motrill of Vermont, Morton, Oglesby, Pratt, Ramsey, Sargent, Stewart, majority of all the members elected, both houses being present and Wa.dlei~h , West, and Windom-32. ABSE ~ T-Messrs. Allison, Anthony, Boreman, Carpenter, Edmunds, Hitch­ votin~. There is nothing on the face of this paper to show that a cock, Johnson, Jones, Patterson, Robertson, Sherman, Sprague, Sumner, and majonty of either bouse or of both houses was ever present and voted. Wright-14. Are we to be forced to the construction of the honorable Senator So the motion was not agreed to. from Indiana, that one house alone, having within itself a numerical .Mr. BAYARD. I now move that the credentials of Mr. Spencer, as majority of the membership of both houses, may elect a Senatorf Senator from Alabama, and those of Mr. Sykes, claiming also a seat Let me give you his language: in this body as Senator from the same State, be referred to a commit­ The legislature of Indiana consists of one hundred and fifty members-~me hun­ tee of the Senate-and there being as yet no standing committees dred members of the house and fifty members of the senate. Now if, on the sec­ appointed by this body, I move that it be a special committee-who ond day, there are seventy-six members of the house present, and not a single sena­ shall consider and report to the Senate upon the title of each of these tor, that is a good joint convention, and they can proceed to elect a Senator. contestants. Sir, to call such an assemblage a joint convention is an abuse of The VICE-PRESIDENT. The Senator from Delaware moves that terms. I know that this act was intended to prevent the effect of a tbecase-- factious majority in one branch of the assembly refusing to meet in Mr. BAYARD. Before that question is taken I desire to submit some joint convention; but to say that a joint assembly can consist of remarks. members of one house alone is ~imply to destroy the necessary mean­ The VICE-PRESIDENT. The Chair will state the question. The in~ of words and the intent which the law of Congress was framed to Senator from Delaware moves that the cases of Mr. Spencer and Mr. effectuate. Sykes be referred to a special committee of this body. So much for that proposition, which I deny, that you can turn a Mr. BAYARD. Of five. meeting of a single bouse into a joint meeting of two houRes by simply The VICE-PRESIDENT. A special committee of five members. giving notice to one house, if they do not choose to attend. There Mr. BAYARD. Mr. President, the last vote which was announced must be a majority of the entire legislature, and that majority must si15Dified the intention of the Senate not to postpone the consideration be composed, in part, of members of each bouse; otherwise it is a of this question until the papers should come in; but I still trust that simple abuse of language, a denial of the just force of words, to say they will see the necessity of submitting these varied claims for the that a joint assembly can consist of the members of a single house. same seat to the scrutiny and consideration usually given to measures But, Mr. President, as I said, the Senator from Nevada [Mr. STEW­ before they are reported for the action of the entire body. ART] yesterday very positively questioned the accuracy of the state~ I do not propose to reiterate at any length the propositiono which menta I made in regard to the composition of the bodies, each claim­ I yesterday submitted to the Senate, but merely to refer to some of ing to be the legislature, that elected these two contestants. I said the propositions which were submitted by the honorable Senator then, and I now repeat, upon what I believe to be accurate informa­ from Indiana [.Mr. MORTON J yesterday, and to which, owing to the tion, that in the legislature which voted for and elected Mr. Spen­ late stage of the debate, I did not then reply, and yet which I think cer to a seat in this body there was not a constitutional majority it important should be corrected; and I trust that I may even have of members having certificates, and therefore there was not a con­ from him a reconsideration of his opinion in regard to the act of stitutional quorum of members; but that, in the case of Mr. Sykes, the Congress uuder which legislatures elect Senators to this body . legislature which elected him had a quorum, under the constitution. . It was stated by the honorable Senator, that in the joint assembly of Alabama, of members, who all held certificates of election. Those contemplated by the act of Congress, which means the assembly of the facts, I understood yesterday, were questioned by the Senator from two houses of the legislature, to use his words, "'l'here may not be a. Nevada. As they were not my own facts, but stated on information, single senator present, and yet the joint convention is good, provided I repaired for confirmation or correction to the source from which I the number of members of the house is great enough to be a majority originally received them, and I am authorized to state them ag~. of both houses." Reference was made yesterday to the composition of the fusion He stated that proposition very distinctly, and I dissented from it legislature, as to what it was, as to how it was composed, and what at the time. Upon reflection I continue my dissent, and I submit to its action bad been. A knowledge of those facts ought to affect tlle the honorable Senator that he entirely destroys the essential meaning action of the Senate in the present case, and therefore I ask to have of the plain words of the act when he declares that a joint assembly read from the desk of the Clerk a letter directed to Hon. George can be composed of members of one house alone. The word "joint," H. Williams, Attorney-General of the United States, signed by Mr. in itself, has an express, emphatic meaning, signifying the union ot Hamilton, senator from Mobile; Mr. Erwin, senator from Wilcox; two or more bodies, or parts. It could not be joint if there was only Mr. Anderson, representative from Mobile; Mr. Manning, representa­ a simple integer; it must be the union of integers. Therefore when tive from Mobile; Mr. Doster, senator from .Autauga and Elmore; the honorable Senator declares that there can be a meeting of a legis­ and Mr. Doster is a well-known member of the republican party. I lature, to be called a joint assembly of both houses, with no member desire to have this letter read, in order that the Senate may apprehend of one of the houses present, it seems to me, with all due respect to the character and action of the true legislature formed, if I may so him, I will not term it an absurdity, but I say it is :~ flat contradic­ call them, of the capitol legislature and the court-house legislature, tion of the natural and essential meaning of the words of the statute. which were fused into the present legislature of Alabama. I desire He was driven to such a construction in order to overcome the mani­ to have the letter read. fest defects of the certificate presented here on beha.If of Mr. Spencer. The chief clerk read as follows: I stated yesterday that this certificate nowhere declares that the MONTGOMERY, December 23, 1872. houses voted together, or that they voted separately; it nowhere de­ Srn: The mauner in which the compr.:>mise sug""ested by yourself, with the ap­ clares that there was a quorum of eit-her branch of the legislature proval of the President, for the settlement of the ~ispute in relation to the general present at the time of the vote; and having the paper before me, I assembly of Alabama, has been attempted to be carrieu out by the maJority of the reiterate the statement. court-house party, induces this second appeal to you and the President. This apl?eal, though at the request mainly of tho capitol assembly, is not confined It is here declared that "both houses of the general assembly voted to them; It is made also at the request of gentlemen who are republican in poli­ for a Senator from the State of Alabama to represent the said State tics, and who, prior to tl!H proposed settlement, were members of the organization of Alabama in the Congress of the United States." That is the state­ at the United States conrt-honse. ment, that "both houses" voted. How did they vote f Did they This application is made becatiSe, in the judgment of the applicants, the good faith they expected, and which they couceive you hn.d a. right to look for in the vote according to the act of Congress-each bouse openly by a viva­ carrying out of the scheme, has not 8een exhibited by the maJority of the court­ voce vote of each member-for a person who, to be chosen, must have house party. a majority of the whole number of votes cast in the bouse Y Sir, that The undersigned have been appointed a committee to put you in possession of­ the facts attenaing the attempted settlement of these legislative difficulties. This does not appear; it cannot be implied; and yet it is essential where duty they now perform by calling your attention to the accompanying statement the election took place by each house in the absence of the other. We of facts, a.s they have occurred in the two houses on and since Tuesday the 17th are left entirely in the dark whether, when it says both houses voted, instant. it means that they respectively voted in their respective chambers; You will observe that both parties accepted your plan and agreed to carry it into effect as a full settlement of the dispute; that Tuesday, the 17th instant, was nor does it give you any information as to whether a quorum was named by common consent as the day on which the persons authorized to convene present. There being no statement, and no justifiable presumption in as members were to assemble in their respective rooms in the capitol and carry a case of this kind, because here the law is mandatory, what are we into effect the settlement. · to do f I say the law of 1866 is not simply a declaratory act; there You will observe that in the house of representatives a temporary organization is a mandatory process prescribed by the law which must be followed, was made on that day, and the persons therein then seated as members were the per­ sons indicated in your plan. In the senate on that day the lieutenant-~overnor or no election can ensue. Here, under the mandatory provisions of took the chair, and the persons seated as senators were precisely those mdicated this act, calling for an election by each house, each member voting in your plan. 'Diva voce, a majority of each being required to be present, there is no In the house adjournments were had till Friday, the 20th instant, on the plea that the evidence needed to make the count, as to the seats from Marengo County, allegation upon the part of this certificate that such an election was had not arrived. In the senate, on the 17th instant, it was announced by members ever held by each bouse separately. No statement appearing that from each political party that an a.,a-reement bad been come to in relation to the the houses voted separately and elected, we come to what is then re­ disputed seats whereby "the count by tellers would not be required, but senators quired by the act-that they shall meet in joint assembly for the from those ilistricts would take their seats iu accordance with what it was admitted the count by tellers would show to have been the" actual vote ca.st." purpose of electing by a joint ballot; and there, as_I pointed out yes­ To carry this arrangement. into efl:'ect., an adJournment of the senate was had terday, the certificate is fatally defectivo,·stopping short at the very until the next day. On the next day, the 18th instant, this arl'angBment was car­ point of the essence of this election. The certificate states that ried into effect in the senate. Under it the r epnll lican senator from Marengo was seated in place of the democratic senator ft·om that county, who held the regular ''George E. Spencer, having received a majority of all the votes in certificat-e of clectiou ; the democratic senat.ol' from the Conecuh district retained both houses, was duly elected Senator." That is not the act of Con­ his seat; tho right to contest, under the law, being_retaiued by the retiring claim­ gress. That is not in accordance with the mandatory provisions of ants, respectively. 24 CONGRESSIONAL RECORD. MARCH 7,

The sa me proposal was made in the house of representatives as to the Marengo If the plan of the Attorney-General coulu bear such construction, which it ua n­ seats, to wit, the members from that county, holding certificates, would waive not, it would bo disrespectful to that officer and to the. President to suppose that the actual count, and arlmit a count which would show the numerical majority, he intended to impose upon claimants of seats in the general assembly an.v such upon the precinct-inspectors' returns, to be in favor of their opponents, and would rulo as that they should waive their conatitutional right to test the le,.alityof their retire, retaining the right to contest under the law. opponent. ' election, or intended to compel tbe houses of the a.~semb'i'y to disclaim For reasons unknown to tho undersigned, this proposal was not accepted in the their constitutional right and duty tojud~e of the elections of their members. No house till Friday, the 20th in!ltant. It was accepted on that day, and the repub­ such design can be imputed to those officers. They very properly might, and they lican claimants of the seats fl'Om Marengo -county thereupon took their seats as did, suggest for consideration, a plan whereby the pri.ma-Jacie rigllt to sit could be mem hers of the house. tested, in such manner that a majority of votes should seat the member, and sore­ By this agreement, carried into effect in the two houses, the right of parties to move cavil and distrust; but it cannot be supposed that they woultl undertake to seat-s was ascertained upon the principle proposed by you. In each, by consent, interfere with the indisputable right of a State and the member of a State legisla­ the parties having tho majority of votes cast were, m virtue thereof, allowell to ture, by dictating a waiver of right and duty. take their seats, and become members in all reapects the same as if they had been In every aspect in which the matter can be regarded, the undersigned and their furnished with a regular certificato of election by the officer authorized by law to a-ssociates can discover no ground for the later construction put !ln this agreement give that document. by the leaders of the court-house party, and can find no excuse for their conduct The result to be obtained by your plan was reached. The mode only was waived, in departing from the construction they themselves at first placed upon it, in per­ and it was waived by common consent. In effect, then, your plan was carried out; mitting, without objection, the election of permanent officers by the house, and the its literal execution only was waived, but without the slightest change of result, announcement by the senate to the house that it was permanently organized aud and this only in order the more speedily to reach the result which would have ready to tJroceed with business. followed its literal execution. This is abundantly shown by the proceedings of The undersigned and their associates are not informed of the motives and objects the two houses, by their resolutions, and particularly in the senate by the terms which led to this new departure. They declare that no excuse for so doing can be of the paper, caused t.o be entered on its journal by the lieutenant-governor, e:z; found in the conduct of themselves or their fl'icnds. They have scrupulously and ojf.-;io its preaiding oflioor. In each house this was apparently accepted by all as a industriously done all in their power to carry int~ effect the compromise agreed full performance of the agreement or compromiso. It was certainly regarded by upon; they have attended, day by day, at the appointed plaoo, to bling about a these applicants as 1\ fnll settlement of all the disputed questions. union of aJl the members entitled to form the general assembly; they have of them· Immediately upon this agreement being adopted, a permanent orjtanization was selves, and apart from the other members of the two houses, done nothing whereby made in each house. In the senate this result was reached on Wednesday, the harmony of feeling could be disturbed or suspicion excit~d; they have in good faith 18th Dect'mber. It t.hereupon elected it.a officers, (its presiding officer appointed endeavored to conform in each and every particular to the objects sought to-be by the constitution being then in the chair,) and, by resolution, notified the bouse secured, and to effect a permanent union into one indisputable general assembly of of its organization. The lieutenant-governor congratulate(l the senate upon the all the persons entitled as members thereof. • happy settlement of the dispute, which had delayed the pnblic business, and The undersiJ:IIed regret that they cannot so speak of the oonductofthe other party. stated that 1:\e then took his seat as president of the senate. He began tho oall of That party has attempted to preserve their separate organization at the vory the senatorial districts for tho presentation of bills, and only ceased upon tho in­ time they were seeming to unite with us in forming a general assembiy under the quiry whether it was competont for the senate so to proceed till informed of the plan of compromise. During a part of each day they have met with us in the capitol organization of the house of representatives. and proceeded as if with the view to effect the proposed fusion, while during the Tho same result was reached in the honse of repre~entati vee on Friday, the 20th same day, at other hours, they held sessions a.~ ot' tho general assembly at the court­ December. A permanent speaker was then elected, and also a clerk and other house, in this city, and proceeded to enact bills into laws (as they call them) which officers. vitally affect tho financial and other interests of the State. These sessions appear The undersigned and their associate.~ were well pleased at this settlement of to have been held with closed doors, and secretly, at least not publicly and openly, past disputes, and with great satisfaction looked forward to tbo performance ef and without public report of their proceedings. These proceedings have been witn t.he rluties with which they were intrusted, which the affairs of the State so im­ the knowledge and apparently with the approval of the governor of the State, and peratively demanded. this, though that officer himself earnestly by message advised the adoption of the Their hopes have been disappointed. scheme proposed by yourself, and well knew the steps that were in progress in the On the morning of Thursday, the 19th December, after the roll of the senate had two houses in the capitol to effect the compromise he so earnestly recommended. been called, and the journal had been read antl approved, the lientenan t-governor, These sessions wero held daily at the United States r.ourt-house, during the whole from the chair, announced that according to his construction of the agreement the time the. joint sessions were held in the capitol. senate was not yet organizodJ. and could do no business till the contests for the The undersigned have not the means of layin~ before you the journal of tho seats from the Marengo and t.:onecuh districts were decided. proceedings of that party, nor are they perfectly rnformed of all its acts. This position was in direct contradiction to former rulings and acts of the same They state, however, that the governor addressed to that party at least one otficer, and in conilict with decisions by the senate itself. That officer refused to message in writing, a copy of whioh is hereto attached, while he made no commu­ permit an appeal from his decision, on the plea that he was acting, nut as presi­ nieation of any kind to the houses assembled in t.he capitol. They state that no dent of the geoate, bnt 1l8 lieutenant-governor. cha.rgcrl. with the duty of organiz· excuse can be fonnd for this course on his part in the financial condition of the ing the senate, and a decision of senators, if contrary to his, would be the decision Stat~ which coulll not as well have been considered-and provided for by the gen· merely by a majority of a mere convention, without the power or aut.hority of a eral assembiy of the State. '.rhat assembly wa.~ aml is as anxious to provi£1~ for senate. A desire still, if possible, to secure harmony, induced those who were op­ the commercial honor of the State as GO\'ernor Lewis can ba, and woulli cheerfully posed to this view to waive pressing their appeal, and see if an adjustment were have foregone the pleasures of home in order to meet the exigency of the occa­ yet practicable. sion. Tbe failure in assuring its co-operation does not rest with us, nor with tlle With this purpose a resolution was passerl for the appointment of a committee undersigned and their associates. . of two from each party to take testimony and report upon the legality of the title of His message bears date the 20th December. On that day both honses of tho the respective claimantttof the seats in tho senate from the districts of Maren~.ro and general assembly were fully organized, nod well prepared and cntirelv willing to Coneouh, as in the ease of a contest undet· the constitution and laws of the State. attend w any bnsiness that mi,.ht be brought before them. It is needless to say It was hoped the lieutenant-governor st~od alone in this strained construction of they far more truly represente~ the people and t·hO property of Alabama than rlid the agreement of compromise. Since then, however, t.he speaker of tho honso of or could the fragmentary bodies which pretended to sit as the general a sembly representatives has announced tbe same decision-the more strilting and strange of Alabama in the United States court-room. 011 his part, because he has been elect-ed and sworn in as permanent speaker-and It will boob erved that the senate was or~anized in the capitol on 18th Decem­ if his decision on this point bo correct., he has decicled himselfoutofh.is office, for, by ber; tho house of representatives on the 20th. Adopting iu this respect a liberal the agreement, no permanent officer coultl be elected by the bonse t.ill these con­ interpretation of your plan of settlement, by its t erms, on tbat day tho officors of tests had been deciderl, and on this theory they have not been rlecided. tha former diRtiuct organizations ceas01l any longer to be officers. By adopting your The proceedings of both brancltes of "the assembly show that they have each plan, they ea.ch then becamejuw:tus ojfwio. pa.~sed through the temporary organization of their bodies, as propo11ed in vonr There are DOW found in the office of the secretary of Rta.te, at Montgomery, three plan, and have each permanently organized them~elves by tho election of their Jocmnents, which purport to be act-s passed by the organization at the court·ltoi1SC­ necessary officers. This was done in each by the common consent of all the mem­ they form no part of the proceedings of the assembly at the capit-ol, aud were bers. To t.hese steps no objection was made from any qnarter, as, indeed, no ob­ never made known to it-all enacted since 17th Decembor, and approved on 21st jer.tion could properly be made. The two branches of the assembly have thus con­ December. strued tha agreement for themselves, and wiU1 the concurrence of the presiding They are believed to have been adopted by that organization on Saturday, the officers; and tWs construction is in plain accord with the plain and literal meaning 21st., at a time when there '\l ere not present a quomm of their membe1·s even as of the a~eement. they had organized and seated them. It is known that on the night of Friday tbe The dispute that existed was in relation to the parties who should occupyoertain senators from RliBSell and Autauga, who bad formed a part of their senato before seats. One set of claimant.~ held the customary evidence of right to the seat, the the 17th, were not present, t)lough urged to attend and· form a quorum to pass at other insisted this form of evidence rested on a fraud, and that they should be least one of these bills. TheRe gentlemen, though republicans, have declinetl seated. To settle this contest you, in behalf of the President, suggested that the to act further with that party. They conceive they are bound by the compro­ certificated members shoultl take their seats, but should not vote (our remarks do mise which they aooepted, at least till they see it ,vi]] not be carried out by not apply to the seats from Barbour County, for they are not at all involved in the the members of the former capitol organization, and good faith required them t~ present aspect of the case) ou any question; that a temporary organizatjon only abstain from further assembling with a mere fragment of the whole. They did should be made in the house. 'l'he ~enate not requiring any electionJor its president~ not attend at the passage of these bills. wh? is appointed by law, no occasion existed to provide for its temporary organi­ Of these bills, one is an net increasing the present rate of taxation 100 por zatiOn. To ascertain the persons who should vote and act as members in the dis­ cent. ; another authorizes the issue of additional St~t~ bonds to tho amount of puted seats, you suggested shoulll be the first business transacte1l, and this should !$2,000,000, to be sold or hypothecated by the governor; the third authorizes a sale be ~ffected by taking the " actual vote cast," as returned by precinct inspectors, in by the ~overnor of the Alabama and Chattanool?a Railroad, in whoso affairs tho place of the report by the count.y supon-isors of. elections, a.~ furnished to the sec­ State is Implicated to the amotmt of several millions, and which has a-lready been retary of state. The machinery to ascertain this actual yote cast was the appoint­ sold by the former governor, and about which matter a groat deal of public solici· ment of tellers, one from each political party in each house. Here, then, was the tude exists. contest, and hero the modo of settling It. The mode of settlement was clearly a It will be observed that this attempted legislation is of BO trifling or unimpor­ secondary matter. The settlement of this contest was the principal thino-. The tant character; It affects the largest interest of the State. It was not bacl in plan say!!, " When such contest is determined, the house lihall make a per7na.nent open and public ses!1ion of an undisputed general assembly, lmt by a mere fra~­ organizanon in the usual way.'' In the senate tho contests were for two seats from ment of the houses then in (laily session at the capitol, airled by qthers who h:we two senatorial districts, and the right of the claimant.s to sit was to be ascertained no claim to seats under the agreement which had been adopted, and was hall by ~the same mll>nner. as provided for the" house contest." "Nor shall the senate men who pretended, at the very time that they were so acting, to be carrying into do any other business before these contests are settled." effect this plan of compromise, and for this purpose were daily assembling as mem­ These contests, both in sen a to and house, have been settled; they have been set­ bers of another general assembly at the capitol. tled b;r agr_eement, and have been settled in such way that the "persons found to The undersigned and their associates ca.unot in these facts discover that good have toe highest number of \otes" for senators and representatives have been faith in effecting the compromise, which they conceive that both themselves aud seated in their respective houses. the President and Attorney-General had a ri.e;ht to expect at tho hands of that body. These contests are the contests provided for in tbe plan of compromise proposed The undersigned-do not propose to characterize such conduct by any language of and accepted; they are the only contests provided for; thoy could b~ the only con­ their own; they present tbo fucts to speak for themselves. te~ provided for; they were the only contests that stood "in the way of harmony The undersigned aud their associa tes conceive that, in this address to you, thoy on~mally ; ~beY. were all that could, with any shadow of excuse, stand in tha way are but performing a duty, springing out of the relation that the circumstances of of the orgamzatiou of the general assembly of Alabama in the capitol on the first the case have created between you anrl the g neral assembly of Alabama. They day of tlie session. conceive that when, with the approval of the President, you proposed to the The inevitable result of the bare perusal of the argument of compromise-and governor of the St.ate "a plan of compromising tho difficulty " growing out of this view is only strengthened by consideration of the i.looument-is, that when tho "two orl!anizations at Montgomer y, claimin,. to be the general assembly of tb.e members from Marengo and Conecuh were seated in their respective houses upon State," you rlid not suppose it possible that t~e plan would be accepted, and yet the agreemont h ereinbefore mentioned, all the conditions wero complied with aml "the difficulty" be industriously culti ,·a ted by one party to the llis:J.dvantage of the _two houses were in a con

They do, tberetore, respectfull.v invite yon to a consideration of the facts herein seat onf3 of two men, when so much of irr~gnlltrity, such an unde­ gtatcd. They rcq~est your action in such form as your wisdom may approve, to secure tho end wh1ch, through your arrency, appeared upon the point of being niable absence of regularity and authority, marks every feature which efl'ected, and which will result in one Yegislature, about whose validity no ques­ preceded and accompanied this so-called election. tion can be made, t{) the satisfaction of the good people of the Stato. I do not mean to say what shall be the result of the action of this Very respectfully, your obedient servants, fusion legislature; that is not the question; but I do mean to say that P. HA1tULTON, Senator, .Mobile. you have no right to give greater weight to one of those fragm~uts R. H. ERWIN. which now compose this legislature than to the action of the other, Senator, Wilcoz. and yet that is the proposition. How Senators, in the face of such a D. C. ANDERSON, record, of snch a statement as is presented by this long. communica­ Representative, Mobile. A. R. M.d.NNING, tion which has been read to the Senate, can undertake to seat a ma-n in Rep·rese:ntative, Mobile. ~bis body for one instant, and give him the powers and the privileges C. S. D. DOSTER, In the government of this country which a seat in this body implies Senator, Autauga and Elmore. and carries with it-how they can do that in the face of the history Hon. GEORGE H. WILLIAMS, A~rney-General United States. of affairs in the State of Alabama, as portrayed by the evidence now before them, is something that I cannot see. It is too dangerous, . Mr. BAYARD. Mr. President, my object in having this paper read Senators. I know that we live in times abnormal, in times revolu­ was to exhibit to the Senate, by undeniable information, the anoma­ tionary; but I appeal to Senators, do not add to the difficulties of lous and utterly confused condition of affa.irs that may be said even legislation here by gravely putting upon the record your willinO'­ now to exist in the State of Alabama. I do not propose to recapitu­ ness to decide without a hearing, to decide without knowledge, ~ late the history of these irregularities; it would be too long; it would decide in the face of such gross irregularities as certainly will not be unnecessary, perhaps; but briefly let me refer to the fact that there make your action legal, except so far as your mere will may conduce were two rival bodies, each claiming to be the veritable legislat.ure of to that effect. the State of Alabama; th::Lt although Mr. Lewis received his own cer­ Mr. MORTON. Mr. President, the Senator from Delaware has had tification of election at the hands of one of those bodies that sat in the a long statement read, purporting to be a history of the compromise usual seat of legislation, the capitol at Montgomery, Alabama, yet he between the pretended legislature which elected Mr. Sykes and the instantly turned round and recognized the rival body, and acted with legal legislature, a8 decided by the supreme court, which elected 1\Ir. them until a suggestion emanating from the executive branch of this Spencer. I do not propose to go into the argument of the questiont'l Government, through the Attorney-General, proposed a settlement of arising from that statement, nor to undertake to correct that state­ the difference between the certificatecl and uncertificated members of ment at this time in its allegations of fact. All that would properly the legislature, and a proposition was made in accordance therewith arise before a committee, and the Senator has moved that all these for their fu'sion. That fusion was carried out fairly and fully on the papers and credentials be referred to a special committee, of which I part of t.hat legislature which sat in the capitol of the State of Ala­ should be very glad, if there is to be a reference at all; but I think bama, but wa..« not carried out or acted upon in good faith by the other it proper to give to the country a little history that goes behind that body which occupied the court-house, and whom the governor had statement, and let us understand what are the merits of this claim, set recognized as the legislature ; for it seems that after Mr. Parsons, the up here with so much earnestness and with such elaborate statement speaker of the house, bad been re-elected to his place by the fusion. on the part of Mr. Sykes. legislature, acknowledging the composition of that body to be regular, The State of Alabama at the last election voted for General Grant and receiving his authority and position under it, he and those who· by about 10,000 ma~ority. In regard to the genuineness of tha.. t major­ acted with him, being a part of the court-house legislature, were in ity there is no dispute, and has not been. 1\Ir. Lewis, the republican the habit., after sitting during the day in the performance of legisla­ candidate for governor and the other candidates on the same ticket tive duties in the capitol, of a~jonrning by night at an irregular time with him, were elected by average majorities of 9,000 ; and, as we to the court-house and there holding secret sessions, passing other have been told, this pretended legislature, that elected Mr. Sykes, bills, before what was really a mere faction and not a legislative body. counted the vote and declared Mr. Lewis elected by about 9,000 ma­ The value of Governor Lewis's certificate may be ascertained by iority. In other words, the State of Alabama was confessedly lru·gely the fact that he has recognized 3:nd approved bills passed in secret republican, as clearly so a-s Kentucky is democratic. But the legisla­ by this factious fragment of a legislature, acting in direct bad faith ture was close between the parties, owing to the way in which tho to the agreement made under the suggestion of the Attorney-General State was apportioned, the counties being divided off into represent­ of the United States, that he has approved bills passed by them in­ ative and senatorial districts, and the polit.ical complexion of the creasing the taxes of the peovle of that State 100 per cent., bills legislature depended upon the vote of two counties, .Marengo and appropriating $2,000,000 to be negotiated or hypothecated by the Barbour. If the republican candidates were elected in those two governor, and one other bill, the purport of which I do not at this counties, the legislature would have a republican majority in each instant remember, but a bill of an exceedingly important character; branch. If the democratic candidates were elected in those two and yet, approving the action of this factious fragment meeting in counties, there would be a democratic majority in each branch, and the court-house, he has since that time approved measures of the so there was a contest made after the election, more than before, to fusion legislature meeting at the capitol. Now, sir, when yon have secure democratic representatives and senators from those two coun­ a governor who by his public action. approves as acts of legislation ties. Those counties were republican. I have the official vote here, measures passed by two legislatures while both are in session, after certified to officially by the returning-officers of the county of Ma­ he has promised to recogniZe but one, what is to be the value of his rengo, all of· them democrats, showing that the total republican vote certificate as to the election of a Senator to this body! Why, sir, in that county was 3,122, and the total democratic vote 2,064; giving if he had done in regard to the senatoria1 certificate as be has done a republican majority of 1,058. There was no sort of doubt that tho in regard to the legislation of his State, we should have two certifi­ republican candidates for the legislature, as well as for State officers cates from the same governor of the election of two different persons and presidential electors, were elected in that ~ounty; Lot ·an attempt to the ~:~arne seat in the Senate ! was made to secure the return of democratic representatives and I say this, because the Senate cannot escape from the fact that no senator-three representatives and one .senator-by a fraud that I · longer do the certificates stand here a-s pri'm.a facie the truth of his­ will now describe. tory in the recital of the acts of the legislature, but they show you After the election was over a bill was filed in the county court. that all has been confusion, and that whe.p by a most anomalous pro-­ They have, I believe, a court of chancery, and a judge in that, called ceeding on the part of the Executive of this country, acting through the chancellor. A bill was filed before the chancellor to restrain the the Attorney-General, a suggestion is made for the reconcilement of returning-board from counting the vows in one precinct that gave a differences, when that has been acted upon so that these two bodies very large republican majority. As finally counted, the vote stood meet and fuse themselves into an acknowledged legislature which is on an average, for the republican candidates in that precinct, 750, and in session to-day, the Senate cannot undertake to act upon a certifi­ for the democratic candidates, 182. It appeared that the. polls hacl cate (I do not care whether it be of Mr. Sykes or of 1\!r. Spencer) of been manipulated in other townships in that county in such a way either one of two mere fragments of a legislature at one time propos­ that by throwing out that precinct the democratic candidate woulcl. ing to act independently, but finally confessing the irregularity of be returned. A bill was filed, as I hav(l stated, to prevent the. return­ their action and voluntarily fusing into a single body. ing-officers from counting the vote in that precinct, and an injunc­ I do not propose to enter into a discussion of the rightfulness of tion was granted by the chancellor. Mr. Sykes's claim to take a seat, or of Mr. Spencer's right to take a Then the returning-officers went on to count the votes in the other seat, beyond this, to show to the Senate that there is no prima-facie townships, and they returned the democratic candidates for the leg­ case, or if there was, that which might under other circumstances be islature as elected by a very small ma~ority. They immediately cer­ considered a prinw,..jaeie title to a seat, cannot, looking at the whole tified that return to the secretary of state, and he at once issued state of a.ffairs before you, be considered entitled at all to such action certificates of election to the democratic candidates a-s having been upon your part M will place in this body, without examination· and elected. About a week afterward the chancellor dissolved the injunc­ without question, a person who shall have the right to vote as for tion, and the returning-officers were required to count the votes of that a State, not simply affecting that State, but affecting all others, the township along with the rest. The result was that the republican rights of the State that I represent as well as of every other State in candidates were elected by a considerable majority, and the return­ this Union. ing-officers then certified a supplemental return to the secretary of Sir, the question is too grave for such treatment. I cannot under­ state upon which he was called on to issue certificates of election to stand how the Senate can satisfy themselves to cut this tangled web the republican candidates; but he refused to do so ; he had already of faction, of intrigue, of irregularly exercised power on the part of given the certificates to the others, and refused to recognize the sup­ the General Government of tho United States, by sa.yiug they will plemental and true returns, of which I have a certified copy now ~------,

26 CONGRESSIONAL RECORD. ~fARCH 7,

before me. In that way they secured four members of the legislature seating a man in the Senate, or whether he does not now recognize in the county of Barbour. that there is something in the shape of a respectable legislature in Perhaps I have made one error in my statement. The majority that the State of Alabama, whose action should alone be considered by tho I have read, of 1,058, is in the county of Marengo, and this lawsuit Senate of the United States, in the selection of a member to this took place in Barl;10nr County. The republican majority in Barbour body. is about 750 instead of being 1,058; but in all other respects my state­ Mr. MORTON. I wish to say a single word on that point, as I do ment is correct, that when the supplemental return was sent to the hot want to detain the Senate, and I ha-d no wish to say another secretary of state, certified to by a democratic returning-board, it word in this deLate. When the capitol legislature first convened, showed all t.he republican candidates elected, and that they were en­ while Governor Lindsay, the democratic governor, was still in office, ~tled to the certificates, bot the democratic candidates had got them, before the inauguration of Governor Lewis, the republican members, and refused to give them up and held on to them. finding that they were to be overslaughed by the means I have re­ Now I come to the county of Marengo, where the republican major­ ferred to, refused to go into that legislature, and they organized what ity is 1,058; where a box was thrown out in a large republican pre­ was called the court-house legislature, and they received into t.hat legis­ cinct by the returning-officers, and by throwing out that box they lature, as members of it, the republican candidates from the counties .gave a small majority to the democratic candidates for the legisla­ of Marengo, and Barbour, and from the district of Conecuh, men who ture, three representatives and one senator, making four members of were afterward confessed and shown to have been elected. Receiv­ the legislature in that county, and eight in the two counties. There ing into that legislature the members from those three counties, they was no question that the republican candidates were elected. The had a quorum in the senate and a quorum in the house. ill other return of the others was made by throwing out a box on technical and words, the members who were in the senate and in the house of the insufficient grounds ; and afterward when the two legislatures were court-house legislature, and who took part in the election at which Mr. merged, after the union had taken place under the advice of the At­ Spencer was chosen, every one of them voting, now constitute t.he torney-General, every member of that body, every democrat and every actual quorum in the legislat.ure as at present organized. The Sena­ republican, voted to seat the republican candidates both from Ma­ tor understands that proposition, that the men who voted for Spencer rengo and from Barbour; so that the supposed majority or apparent in the court-house legislature, both senate and bouse, now constitute majority of the democratic candidates was absolutely a downright a lawful quorum in the senate .and the house after the members of fraud. Nothing in Louisiana, that my friend from Delaware so elo­ the capitol legislature have gone into the legal body. quently denounced, was more wicked than this fraud, and while my Mr. BAYARD. But at the time of their action they had not certifi­ friend cannot brook even the appearance of fraud in Louisiana, he cates. ought uot inadvertently to give countenance to it in Alabama. l\Ir. MORTON. I confess that. I am stating the whole truth about Mr. BAYARD. Wlty, Mr. President, the honorable Senator hasjust it. At the time of tbeh· action the members from Barbour and from told us what I think is a very natural fact, that when the fraud was Marengo Counties had not certificates. They were held by the spu­ exposed the democrats are those that put their .feet upon it. The rious members in the other legislature. very instant the legislature has fused and regularity is restored, the Mr. BAYARD. Do I understand the Senator to say that there were wrong is corrected, and I thank God that I do not know anywhere no others, except members from these counties, who were there with­ where the democracy approve of fraud committed in their behaM. I out certificates Y only wish that example would be followed by some other people. Mr. MORTON. Not that I know of. Mr. MORTON. The Senator's congratulation of himself is a little Mr. BAYARD. The Senator has large information, apparently, ou too sudden, and I think I can show to him that the foundation for it this subject; and as he is speaking with so much confidence, as he is not very good. They succeeded by getting an apparent maJority in generally does, I think he should know it. that legislatme, and they held on to it just so long as they could. Mr. MORTON. There is no dispute about any other counties bnt With a perfect knowledge that the republican candidates in those these two and the Conecuh district. The very agreement the Sena­ two counties were elected, they went on and attempted to organize tor bas read shows that the dispute arose iu regard to those counties the legislature with a democratic majority in each branch, and did or those senatorial and representative districts. constitute what was called the capitol legislature. They retained Mr. BAYARD. The fact is au awkward one, and therefore the those spurious members in that body nntil, I believe, some time in Senator passes it over. the mout.h of January, when, finding that the court-house legislature .Mr. MORTON. I have no objection to the Senator from Dela­ was recognized by the governor, by the State officers, and by the ware giving any facts. I am sure he cannot give any that will con­ courts, and that their claims were gone, t.bey then did give up their trovert the statement I have made. When the capitol legislature pretended orgauization, and went into the court-house legislature ; first met, Governor Lindsay, the old governor, recognized it as being they merged their existence into the other body; and it was a part the lawful legislature, and it is true that the lieutenant-governor, of that agreement that the votes should be fairly counted. They did the outgoing lieutenant-governor, on the proper day, did count the consent to it finally, but under great stress of weather, and after long votes for Governor Lewis and for Lieutenant-Governor McKinstry, delay, under the circumstances I have described. and declared them to be elected in the presence of what were cn.llcd Mr. President, there was a third senator, ft·om the district, I be­ the senate and the house of the capitol legislature. But it is equally lieve, of Conecuh, the republican candirlate being clearly elected, but true that immediately afterward Governor Lewis recognized the the retnrning-offic1.1rs threw out the votes from a new county called court-house legislature as being the lawful one, as having a quorum Escambia upon a technicality. If I am correctly informed, the tech­ of men who were actually and truly elected, as it turns out upon the nicality was that the name of the senator was printed on the same final showing, and the courts have reco~nized that legislature. For ticket with those of the State officers. Upon an insufficient ground example, Mr. Spencer was elected on tne 4th of December ; on the the vote was thrown out. and the democratic candidate returned as lOth of December that legislature proceeded to the election of a State elected. After this organization took place, or after the capitol legis­ printer, in accordance with law; the capitol legislature had done the lature had given up the ghost, and its members bad voluntarily gone same thing; they had elected such an officer, and the contest came up into the court-house legislature, there was n. contest made in regard between these two State printers as to which was the rightful officer. to the senator from the district of Conecuh, and the republican -candi­ That contest, after litigation, found its way into the supreme court dn.te was put into the place to which he was elected, and the other of the State, aucl they, within a few days, have decided the question, man was turned out as having no right there. deciding that the State printer elected by what was called the court­ Now, when you come riO'ht down to the question of fact, Alabama house legislature was 'the la.wfnl officer; that he was elected by the was republican ; a republican legislature was fairly and honestly legislature of Alabama ; and, mark you, they held that that was the electe

In 1866 the Congress undertook to and did pass a law in pursuance The yeas and nays were ordered; and being taken, resulted- yeas of the authority given in that clause, and prescribed the time and 20, nays 38 ; as follows : ~ manner in which members of this body should be elected. In t.he act YEAS-Messrs. Bayard, Bogy, Casserly, Uooper, Davis, Dennis, Fenton, Gold­ of July 25, 1866, section 3, we find: thwaite, Hamilton of Marylan

1873. CONGRESSIONAL RECORD. 29 in each house had the certificate of elect,ion which the law demands. count and determine the votes for governor, and to a.nnouuce the I ask any-Senator on this floor to inform me, if every requisite of the result. That was done. Governor Lewis, who has since dethroned law and constHntiou of .Alabama ha-s been complied with in so far as them, recognized them when he held. that they were the legislature tile organization of that body was concerned, what exception can be required by law, and capable of pronouncing upon his election. But taken to the legality of its action f Was any requisite demanded by while he recognized them as a legislature sufficient for the purpose Jaw not complied witL Y Not one, sir. If yon will read the evidence of installing him into his seat, he recognized them no further. I do which will be before you in the journals of the two houses, yon not suppose in legal effect that one legislative act, one act required will find that they met at the time, and that they were organized on to be done by a legislature, is of higher dignity than any other the day and by the officers and at the place prescribed by law, and act; that the passage of a la.w is an act of higher dignity than the by a full quorum ; all of which requisites were demanded, and which electio» of a Senator; and whenever it is shown that a general were complied with, and which were the only requisites that the law assembly ha.s the power to pas-s laws, that the legislature has exer­ then demanded. cised that power, whieh laws were approved by the governor and are I apprehencl that it will not be.questioned that if the legislature &till in force, the same power which exists so far as laws are con­ was organized in pursuance of the la.ws and constitution which I have cerned exists, unless it is restrained by either the law or the constitu­ referred to, every act done by that duly-organized legislature which tion, in relation to every other power which they are to exercise. was in consonance with the Constitution of the United States, and in I believe, sir, I have stated all that it is uecessary for me to state accordance with the constitution of Alabama, was entirely valid. Ou upon this qnestion. Believing that the Senate, whep_ the papers are the day appointed by law, that legislature, every member of which before them, will see, even adopting the prima-facie inference arising was certificated according to the laws of Alabama, met and proceeded from the certificate, tha.t the other evidence to whicl;l I have referred to the election of a Senator of the United States. The election wa-s will more than balance that testimony, they will decide accordingly. conducted in strict conformity to the act of Congress of 1866 upon They did so in my ca-se on much lighter evidence. that subject, regulating that election; and the memorialist who comes The VICE-PRESIDENT. The question is, shall the oath be now before you with his petition received a majority of the votes tlius administered to Mr. Spencer Y ca.st. · The question being put, it was decided in the affirmative. Now, I would ask Senators who differ with me how it can be pos­ Mr. SPENCER thereupon advanced to the c-ha.ir, and the oaths silJle, if that was a lesa.lly-organized legislature, that there could be prescribed by law having been administered to him, he took his seat any other legislature m existence but the general assembly de jure'! in the Senate. Here is a contest with a rival house-a contest with a legislature that ELECTION OF CHAPLAIN. was assembled, not at the place required by law; which was organ­ Mr. CAMERON. This morning a resolution was offered to con­ ized, not by the officers demanded by the constitution, but an assem­ I bly which met in secrecy, in a place different from that appointed by tinue in office the Chaplain of the Senate. desire to enter a. motion the law, and which was not organized by f,he officer appointed by to reconsider that vote. law; and it was by tha.t body that the election of Senator Spencer The PRESIDING OFFICER, (Mr. FERRY, of Michigan, in the chair.) wag made. The Senator from Pennsylvania enters a motion to reconsider the I take it that it is a perfectly clear proposition that, if there be a vote on the resolutioa. indicated by him. The motion will be en­ body de jure, acting of right, it is actually an impos ibility in a legit- . tered. imate sense that there can be at the same time a legislature de facto SENATOR FROM LOUISIANA. whose acts are va)__jd. Why, sir, yon might as well say that two quarts Mr. WEST. I desire to present the credentials ofHon. William L. of water could be poured into a one-quart basin without spilling a McMillen, of Louisiana, for the senatorial term commencing Marc~ drop. It is absolutely impossible for the two bodies to exist in the 4, 1873. exercise of their separate functions together. There may be a legis­ The chief Glerk read the credentials. lature dejacto in the absence of a legislature deju1·e; but it is impos­ Mr. WEST. I move that the credentials lie on the table. sible that there should be a legislature de facto when there is actually The motion was a.greed to. · a legisla.ture de jure in existence and acting. It could be accomplished Mr. THURMAN. '!'he credentials will, of course, be printed. Is it only by revolutwn, only by excluding the legitimate bodies by force, so understood 7 which amounts to revolution. Mr. WEST. I will add that they be printed. Two years ago, as I have said, I presented my credentials before Mr. THURMAN. If that is not included in the Senator's motion, this honorable body. No objection was taken to their form. I was it ought to be. denied my seat by members of the opposite side of the Honse upon a Mr. . WEST. I move tha.t the credentials of Mr. McMillen be printed. mere memorial~ stating facts which 1 think the most ordinary justice The motion wa-s agreed to. of the peace would have held immfficient upon demurrer. They were simply that I was elected by a bare ruajori ty, and that one, or perhaps ADJOUR~MENT TO MONDAY. two, of the members of the legisla,ture, who were acting in my elec­ On motion of Mr. CAMERON, it was tion and who sustained me by their votes, did not have the certificate Ordered, Tha.t when the Senate adjourns to-day, iii be to meet on Monday next. which the law required. Has there ever been a ca e in which this House has assumed jurisdiction in a matter of that kind, to look into EXECCTIVE SESSION. the merits of an election -the choice in which is confined by the Con­ Several executive messages were received from the President ofthe stitution solely to the legislature T Under pretexts like that, Alabama United States, by Mr. 0. E. BABCOCK, his secretary. was denied her right to one of her representatives upon tbis floor for Mr. CONKLING. I move tha.t the Senate proceed to the COt;lBidera­ nearly twelve months. Smarting under the serise of injustice which tion of executive business. llad been done to Alabama, not to myself, I took the position Mr. MORTON. I ask the Senator to withdraw that motion for a that in every case I should sustain the certificate of the governor moment. · with its prima-facie effect; and it is only within the last few days, Mr. CONKLING. With what viewY upon a more thorough examination, that I have become entirely sat­ Mr. MORTON. I gave notice yesterday that I should ask the Sen­ isfied, so far as my own mind is concerned, (and I speak for myself atAY, March 10, 1873. It IS necessary for me to go rnto the respective merits of the two bodies cla~ming to be the legislature of Alabama. I stand precisely Prayer by Rev. J. G. BUTLER, D. D. at the pornt where I have left the case, and content myself with The journal of the proceedings of Friday last was read and satisfying my own mind from the evidenCe, which is historic, which approved. is sustained by tlle journals of the houses themselves under the cer­ PETITIONS JU.J) 1\IEl\IORIALS. tificate of the proper officers. There is no don bt that the body which Mr. CHANDLER. I present the petitions of J. M. Swanger, post­ e~ected Mr. ~ykes was recognized by the governor himself, ~ho has master, and sixty-three others, of Morley, 1ecosta County, Michigan ; smce recogmzed the other body. The legislature which elected.Mr. of George P. Smith aml twent.y-nine others, of Bald win, Iosco County, Syke~ - us~ered Governor_ L_ewis into existence, for by the l;:~>ws and Michigan; of William P. Hazen and one hnndr~d and one others, of constitntwn of .Alabama It 1s made the duty of the president of the Jonesville, Hillsdale County, llichigan; of Deroy Simpson and thirty­ senate and speaker of the house, in the presence of both houses, to six others, of Flushing and vicinity, Genesee County, Michigan, pray-