I

1892. CONGRESSIONAL ·RECORD-SENATE. 1381 By Mr. DALZELL: Petition of the United Presbyterian Church

of Braddock, Pa., in relation to closing of the World's Fair on Sunday and to other matters-to the Select Committee on the Co­lumbian Exposition.

Also, petition of Nancy G. Miller, to accompany House bill 4698-to the Committee on Claims.

Also, statement to accompany House bill 6200, for the relief of Wilhelmine Kirchner, Washington, D. C.-tothe Committee on Claims.

By Mr. ENGLISH: Petition of Robert H. Cornish, in favor of adopting the metric system in the custom-house service-to the Committee on Coinage, Weights, and Measures.

Also, petition of the Rev. S. K. Doolittle and others, in favor of a loan to the Columbian Exposition on condition that the Expo­sition be closed on Sunday-to the Select Committee on the Co-lumbian Exposition. . .

By Mr. EVERETT: Papers in the claim of EdwardFpwler, of Catoosa County, Ga.-to the Committee on War Claims.

By Mr. GILLESPIE: Petition of the National Woman's (jh-ris­tian 'J,'emperance Union, asking that no exposition or exhibition for which appropriations are made by Congress be opened on Sunday:-to the Select Committee on the Columbian Exposition.

By Mr. GEISSENHAINER: Petition of 525 members of the Methodist Episcopal Church of Ocean Grove, N. J., against open­ing the World's Fair on Sunday-to the Select Committee on the Columbian Exposition.

By Mr. GROUT: Memorial of the Baptist Church in West Wardsboro, Vt., E. B. Earle, pastor, against Sunday opening of the Columbian Exposition-to the Select Committee on the Columbian Exposition.

Also, memorial of the Milwaukee Chamber of Commerce, re­monstrating against the passage of Senate bills 1757 and 1268 and House bill 2699-to the Committee on Interstate and Foreign Commerce . . Also, memorial of Mrs. D. F. Fuller, State president of the

nonpartisan Woman's Christian Temperance Union, Montpelier, a.gamBt selling intoxicating drinks on the grounds of the Colum­bian Exposition-to the Select Committee on the Columbian Ex­position.

Also, memorial of J. W. F. Pod more in behalf of Indian ed u­cation~to the Committee on Indian Affairs.

By Mr. HARTER: Papers to accompany House bill5310-to the Committee on Invalid Pensions.

Also, papers accompanying House bill1344-to the Committee on Invalid Pensions.

Also, papers to accompany House bill 4086 for an honorable dis­charge of Solomon Boston, of Galena, One hundred and twenty­first Ohio Volunteer Infantry-to the Committee on Military Affairs.

Also, petition of VVilliam Wikel to accompany petition for the removal of the charge of desertion-to the Committee on Military Affairs.

Also, papers in the matter of :WilsonS. Lafferty, to accompany House bill 5964-to the Committee on Militar·y Affairs.

Also, petition of Henry P. Cassell, to accompany House bill 6239, for an honorable discharge-to the Committee on Military Affairs.

By Mr. HENDERSON of Iowa: Petition of the Wisconsin In­dian Association, recommending a full appropriation for Indian education-to the Committee-on Indian Affairs.

By Mr. HOLMAN: Petition to a-ccompany House bill for the relief of John Gray-to the Committee on Invalid Pensions.

Also, papers to accompany a bill for the relief of Mildred Pate­to the Committee on Invalid Pensions.

By Mr. HOOKER of Mississippi; Papers in the clai~ of the Roman Catholic Church at Jackson. M1ss.-totheComm1ttee on WarClaims. ·

By Mr. JOLLEY: Petition of citizens of Douglas County, S. Dak., asking Congress to pass the Conger lard bill-to the Com­m~ttee on Agriculture.

Also, petition of citizens of the same place, asking Congress to pass the Butterworth option bill-to the Committee on Agricul­ture.

By Mr. LAYTON: Petition of J. H. Berryman and 37 other citizens, of Shawnee Township, Allen County, Ohio, praying for the pa-ssage of the Hatch option bill-to the Committee on Agri­culture.

By Mr. LODGE: Petition of A. B. Merrill and 9 others, of Everett, Mass., to remove the . duty o:r;t pof?tage stamps-to the Committee on the Post-Office and Post-Roads. · ·

By Mr. McCREARY: Affidavit of Robert Siger, to file with bill-to the Committee on War Claims.

Also, affidavits to be filed with bill for 1-he relief of Mrs. Mors Bell M. Robard....:......to the· Committee ·on War Claims.

By Mr. ~DITH: Pe?tiori.of.James Jac~so_n, for a. pension-to the Committee on Invahd Pens1ons. · ;

.

By Mr. MITCHELL: Petition of citizens of Fort Atkinson, Wis., requesting the closing of the World's Fair on Sunday-to the Select Committee on the Columbian Exposition.

Also, petition of Daniel OjConnell for the removal of the charge of desertion-to the Committee on Military Affairs.

Also, petition of the mayor and common council of Superior, Wis., protesting against the bill to attach the city of Superior to the customs collection district of Duluth-to the Committee on Interstate and Foreign Commerce.

By Mr. O'NEILL of Missouri: Petition of James Hawkins for pension-to the Committee on Invalid Pensions. ·

By Mr. POWERS: Petition of W. A. Martin and others, citi­zens of Fairfax, Vt.; of Dr. F. W. Carpenter and others, of Ru; pert, and of Edward Adams and 47 others, of Grand Isle, for the free delivery of mails in country districts-to the Committee on the Post-Office and Post-Roads.

By Mr. RAY: Petition of citizens of New Berlin, Chenango County, N.Y., in favor of a constitutional amendment separat­ing church and state, etc.-to the Committee on the Judiciary.

Also, petition of the United States court at the city of Bing-hamton, N. Y.-to the Committee on the Judiciary. -

Also, petition of comrades of Walton Dwight, of Binghamton, N.Y., for the proposed law giving preference to veterans of the late war, etc.-to the Committee on Invalid Pensions.

Also, resolutions of the Board of Trade of Binghamton, N.Y.; asking for a term of court at that city-to the Committee on the Judiciary.

By Mr. REED: Petition of D. W. True & Co. and 30 others, citizens and business firms of Portland, Me.; of S. C. Straut and 33 others, of S. B. Gunnison and others, of Cumberland County, and of J~ R. Libby and25others, merchants of Portland, in favor of an amendment to the Constitution prohibiting sectarian ap­propriations-to the Committee on the Judiciary.

By Mr. TOWNSEND: Resolutions of U.S. Grant Post, No. 13, Grand Army of the Republic, of Greeley, Colo., in favor of certain pension legislation-to the Committee on Invalid Pensions. •

Also, resolutions of A. Lincoln Post, No. 4, Department of Colorado and Wyoming, Grand Army of the Republic, indors­ing the · resolutions of the Twenty-fifth National Encampment, Grand Army of the Republic, held August 5, 6, and 7, 1891-to the Committee on Invalid Pensions. ·

Also, petition of citizens of Eagle County, Colo., in favor of the election of Senators by direct vote of the people-to the Commit­tee on the Election of President and Vice-President and Repre-sentatives in Congress. .

By Mr. VAN HORN: Petition of residents of the town of Herkimer, N.Y., for free delivery of mail in country districts­to the Committee on the Post-Office and Post-Roads.

By Mr. WHEELER of Alabama: Papers in the claim of Reu­ben Street, of Madison County, Ala.-to the Committee on War Claims.

By Mr. WILLIAMS of Massachusetts: Petition of 22 citizens of Ashland, of 17 of Sheldonville, of Hopkinton, and Ashland, praying for free delivery of mails in country districts-to the Committee on the Post-Office and Post-Roads.

SEN .ATE. WEDNESDAY, Febrtta.ry 24, 1892.

Prayer by the Chaplain, R-ev. J. G. BUTLER, D. D. The Journal of yes~rday's proceedings was read and approved.

VISITORS TO WEST POINT .

. The VICE-PRESIDENT appointed Mr. CAMERON and Mr. BUTLER members of the Board of Visitora on the part of the Sen­~te to attend the next annual . examination of the cadets at the United States Military Academy at West Point, N. Y.

PETITIONS AND MEMORIALS.

Mr. BUTLER presented resolutions adopted by the Cotton Ex­change of Charleston, S. C., and resolutions adopted by the Cham­ber of Commerce of Charleston, H. C., favoring the continuance of the appropriation for the fast-mail service between Tampa, Fla., and the Northern and Eastern cities; which were referred to the Committee on Post-Offices and Post-Roads. _

He also presented additional papers to accompany the bill (S. 2043) for the relief of Carrie 0. Walla9e; which were referred to the Committee on Pensions. · Mr. STEW ART presented the petition of R. W. Tarry and 51 other citizens of Washoe County; the petition of George D. Mof­fett and 47 other citizens of Humboldt County; the petition of James H.-Murphy and 18 other citizens of Eureka County; and the petition of Joseph Frenchey and 35 other citizens of Lincoln County, all in the State of Nevada, praying for the ceding to the

1382 CONGRESSIONAL RECORD-SENATE. FEBRUARY 24,

States of certain public lands for the purposes of irrigation and reclamation; which were referred to the Committee on Irriga­tion and Reclamation of Arid Lands.

Mr. SHERMAN presented a petition of 76 citizens of Darke County, Ohio, praying for the passage of the antioption bill; which was referr2d to the Committee on the Judiciary.

He also presented apetition,signed by85 citizensof NewPhil­a.delphia, Ohio, praying for a constitutional amendment prohib­iting any State from passing laws respecting the establishment of religion, etc.; which was referred to the Committee on Edu­cation and Labor.

Mr. MANDERSON. I present a memorial of Gen. Auger Post, No. 192, Grand Army of the Republic, of Ewing, Nebr., which, while it is addressed to me, is evidently intended to be presented in the form of a memorial to the Senate, and is over the seal of the post, protesting against and condemning the free­coinage bill now before Congress. I move that the memorial be referred to the Committee on Finance.

The motion was agreed to. · Mr. MITCHELL, I present petitions numerously signed by

citizens of Corvallis, Oregon; Albany, Oregon; Jefferson, Ore­gon; Eugene City, Oregon; Newport, Oregon, and Orange, Cal., all praying Congress to provide such guaranty as will assist, protect, and hasten the completion, and secure the national control of the Nicaragua Maritime Canal, as recommended to Congress by the President in his recent message. I move that the petitions be referred to the Committee on Foreign R elations.

The motion was agreed to. Mr. PADDOCK presented a petition of 28 citizens of Boston,

Mass., praying for the passage of the Paddock pure-food bill; which was ordered to lie on the table.

Mr. VOORHEES. I present a petition numerously and ex­tensively signed by citizens of Indiana, praying for the adoption of an amendment to the Constitution, as follows:

No State shall pass any law respecting an establishment of religion, or prohibiting the tree exercise thereof, or use its property or credit, or any ~oney raised by taxation, or authorize either to be used, tor the purpose of :rounding, ma.inta.ining, or aiding, by appropriation, payment tor s~rvices, ex­penses, or otherwise any church, religious denomination, or religious so­ciety, or any institution, society, or undertaking which is, wholly orin part, under sectarian or ecclesiastical control

I likewise present a petition of exactly the same character, ex­tensively signed by citizens of South Bend, Ind.

I move that the petitions be referred to the Committee on Ed­ucation and Labor.

The motion was agreed to. Mr. SHOUP. I present a memorial of the Milwaukee (Wis.)

Chamber of Commerce, remonstrating against the passage of what is known as the Washburn__bill. !present the memorial by re­quest, and move that it be referred to the Committee on the Ju­diciary.

The motion was agreed to. Mr. CALL. I present a petition signed by a large number of

citizens of Arcadia, Fla., and Punta Gorda, Fla., praying Con­gress to pass a bill making Punta Gorda a port of entry.

I also present a petition signed by a large number of citizens of Punta Gorda, Fla., praying that that place be made a port of entry, and kept in the district of Key West, Fla.

I move that the petitions be referred to the Committee on Commerce. -

The motion was agreed to. . Mr. CALL presented a petition of the Board of Trade of Key

West, Fla., praying for the improvement of the channel at Sa­vannah, Ga.; which was referred to the Committee on Commerce.

Mr. FRYE presented a petition of members of West Minot Grange, No_ 42, Patrons of Husbandry, of Maine, prayingforthe passage of legislation for the encouragement of silk culture; which was referred to the Committee ~m Agriculture and For-estry. ·

He also presented a petition of West Minot Grange, N<;>. 42, Patrons of Husbandry, of Maine, praying for the passage of the bill defining lardand imposing a tax thereon; which was referred to the Committee on Agriculture and Forestry.

He also presented the petition of J. S. Winslow and other citizens of Portland, Me., praying for the passage of the bill to regulate fisheries, etc.; which was ref(3rred to the Committee on Fisheries.

He also presented a petition of West Minot Grange, No. 42, Patrons of Husbandry, of Maine, praying for the passage of leg­islation for the free delivery of mails in rural districts; which was referred to the Committee on Post-Offices and Post-Roads.

He also presented a petition of West Minot Grange, No. 42, Patrons of Husbandry, of Maine, praying for the passage of an act making certain issues of money full legal tender in payment of all debts; which was referred to the Committee on Finance.

He also presented a petition of West Minot Grange, No. 42, Patrons o.f Husbandry, of Maine, praying for the passage of leg-

islation to preveilt gambling in farm products; which was re· ferred to Committee on the Judiciary.

Mr. WASHBURN presented a petition of the Association of Post-Office Clerks of Duluth, Minn., praying for the passage of House bill3608, in relation to such appropriations as shall enable the Post-Office Department to carry out the provisions of the laws; which was referred to the Committee on Post-Offices and Post-Roads.

Mr. HIGGINS presented a memorial numerously signed by citizens of Washington, D. C., remonstrating against the grant­ing of liquor licenses within 1 mile of the Soldiers' Home, in the District of Columbia; which was referred to the Committee on the District of Columbia.

REPORTS OF COMMITTEES. Mr. MORRILL. I am directed by the Committee on Finance,

to whom was referred the bill (S. 675) to amend the laws in re­gard to national-banking associations , to retire their circulation, and for other purposes, to submit an adverse report thereon. I ask that the bill be pla-ced on the Calendar.

The VICE-PRESIDENT. The bill will be placed on the Cal· endar with the adverse report of the committee.

Mr. BUTLER, from the CommitteeonNavalAffairs, towhom was referred the bill (S. 135) for the relief of D. H. Trefethen,

. reported it without amendment, and submitted a report thereon. Mr. HIGGINS, from the Committee on the District of Colum­

bia, to whom was r eferred the bill (S. 1666) to amend an act enti­tled ''An act to incorporate theW ashington and Arlington Rail­way Company of the District of Columbia,:' approved February 28, 1891, chapter 382, volume 26 of the United. States Statutes at Large, Fifty-first Congress, second session, submitted an ad verse report thereon; which was agreed to, and the bill was postponed indefinitely.

Mr. BLACKBURN, submitted a report to accompany -the bill (S. 205) for the relief of Maj. Green Clay Goodloe, heretofore re-: ported from the Committee on Naval Affairs; which was ordered to be printed.

FOREIGN EXHIBITORS AT THE WORLD'S FAIR. Mr. SHERMAN. I am directed by the Committee on Foreign

Relations to report an original bill, and to askfor its immediate consideration for the reasons which I shall state.

The bill (S. 2315) to protect foreign exhibitors at the World's Columbian Exposition from prosecution for exhibiting wares protected by American patents and trade-marks was read the first time by its title. .

Mr. SHERMAN. The necessity for the immediate passage of this bill is shown by a letter of the Secretary of State which I hold in my hand, and also by a letter of the Secretary of the In­terior. The bill was framed also by the Commissioner of Pat­ents to meet the difficulty that will occur in bringing over arti­cles from the different European countries for exhibition at Chi­cago. Our law which protects trade-marks and patents will very seriously embarrass them, and therefore it is important to have the bill passed as soon as possible.

The VICE-PRESIDENT. The bill will bs read at length for information.

The bill was r ead the second time at length, as follows: Be it enacted, etc., That no citizen of any other country shall be held liable

for the infringement of any patent granted by the United St ates, or of any trade-mark or label registered in the United States, wher e the act complained otis or shall be performed in connection with the exhibition o! any article or thing at the World 's Columbian Exposition at Chicago.

The VICE-PRESIDENT. Is there objection to the present consideration of the bill?

There being no objection, the Senate, as in Committee of the Whole, proceeded to consider the bill.

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

RECIPROCAL TRADE REL.i\.TIONS WITH CANADA.

Mr. SHERMAN. I am directed by the Committee on Foreign Relations to report back favorably the resolution relative to re­ciprocal trade relations with Canada, and to ask for its passage.

The resolution.(submitted by Mr. HIGGINS, February 19, 1892) was considered by unanimous consent, and agreed to· as follows:

Resolved, That the President be requested, 1! in his opinion not incompat­ible with the public interests, to inform the Sena.teo! the proceedings recently had with the representatives of the. Dominion o! Canada and of the British Government as to arrangements for reciprocal trade between Canada and the United States.

REVISED SENATE MANUAL. Mr. MANDERSON, from the Committee on Printing, towhom

was referred the resolution submitted by him February 19,1892, reported it without amendment, and it was co~idered by unani­mous consent, and agreed to; as follows:

Resolved, That there be printed for the use of the Senate, under the direc­tion of the Committee on Rules. a second edition of 830 copies of the Revised Senate Manual for 1892.

\

•

1892. CONGRESSIONAL RECORD-SENATE. 1383 BILLS IN'l'RODUCED.

Mr. WARREN introduced a bill (S. 2316) to pension Mary A. ,Abbott, late army nurse; which was read twice by its title, and referred to the Committee on Pensions.

He also introduced a bill (S. 2317) for the relief of women en­rolled as army nurses; which was read twice by its title, andre­ferred to the Cqmmittee on Pensions.

Mr. MITCHELL introduced a bill (S. 2318) granting an in­Qrease of pension to Thomas Espy, of Oregon; which was read twice by its title, and referred to the Committee on Pensions.

Mr. ALLISON introduced a bill {S. 2319) to provide for the es­tablishment of a port of delivery at Council Bluffs, Iowa; whiCh was read twice by its title, and referred to the Committee on Commerce. ,

Mr. WASHBURN introduced a bill {S. 2320) to amend section ~920 of the Revised Statutes of the United States, and for other purposes; which was read twice by its title, and, with the ac­oompa.nying papers, referred to the Committee on Post-Offices and Post-Roads.

Mr. SHERMAN introduced a bill (S. 2321) granting an increase of pension to Jonas Deyo; which was read twice by its title, and referred to the Committee on Pensions.

He also introduced a bill {S. 2322) to provide for the erection of a public building in the city of Findlay, Ohio; which was read twice by its title, and referred to the Committee on Public Build­ings and Grounds.

Mr. PERKINS introduced a bill {S. 2323) making appropria:­tions for fulfilling treaty stipulations with the Eastern band of Shawnee Indians; which was read twice by its title, and referred to the Committee on Indian Affairs.

He also introduced a bill {S. 2324) granting an increase of pen­sion to James W. McMillan, late brevet major-general volun­teers; which was read twice by its title, and referred to the Com­mittee. on Pensions.

Mr. VOORHEES introduced a bill (S. 2325) granting an increase of pension to Serena J. Washburn; which was read twice by its title, and referred to the Committee on Pensions.

M1·. MANDERSON. I hold in my hand several bills which_! propose to introduce that have had their source in the complaints which have come to many members of Congress with reference to the gross swindle that seems to have its head in the city of New York, by which the country is flooded with circulars from those who pretend to have counterfeit money for sale. It seems that to reach this very great evil, this crime in fact, there is no law upon the statute book. I introduce a bill with the accom­panying letter from the chief of the Secret Service Division of the Treasury Department, and ask that it may be referred to the Committee on the Judiciary.

The bill (S. 2326} to prevent and punish persons for preparing or instigating, or in any manner assisting in the preparation of a letter, or circular or handbill,. or pamphlet; or book, or any other thing intended to convey the impression that counterfeit money is being advertised for sale, etc.; was read twice by its

The VICE-PRESIDENT. That change of reference will be made if there be no objection. The Chair hears none, and it is so ordered.

BILL RECOMMITTED.

Mr. CULLOM. - Some 9-ays ago there was an adverse report made by the Senator from Mississippi [Mr. WALTHALL] upon the bill {S.1938} authorizing the restoration of the name of Wilbur F. Melbourne, late first lieutenant, Fifteenth United States In­fantry, to the rolls of the Army, and providing that he be placed on the list of retired officers, and the bill was indefinitely post­poned. After a conversation with the Senator from Mississippi he consented that I may ask that the indefinite postponement of the bill be reconsidered, and that the bill be recommitted to the Committee on Military Affairs. I do not see the Senator now in his seat, but he said I might make this statement for him if he were not present. I ask, therefore, that that be done.

The PRESIDING OFFICER (Mr. PLATT in the chair). The Senator from Illinois asks that the vote by which the bill indi­cated by him was indefinitely postponed be reconsidered, and that the bill be recommitted to the Committee on Military Af­fairs. By the unanimous consent of the Senate the vote by which the bill was indefinitely postponed is reconsidered, and the bill will be recommitted.

REPRESENTATIVES OF GEORGE K. OTIS. Mr. SAWYER. I wish to enter a motion to reconsider the

vote by which the bill (S. 460) for the relief of the legal repre­sentatives of George K. Otis, deceased was passed. There was f!.n error in the bill as passed. I do not care to have action upon the motion now, but I merely enter it.

The PRESIDING OFFICER. The motion to reconsider will be entered.

NATIONAL BANKS.

Mr. FRYE. I desire to offer an amendment to the bill (H. R. 5681) for the better control of and to promote the safety of national banks, pending now before the Senate Committee on Finance. It is an amendment providing that national banks shall be pro­hibited from paying interests on deposits. I offer the amen -ment byrequest. Ihavenotexamined thematterwithsufiicient care to have or to express at any rate an opinion as to its merits now. I ask the Finance Committee to examin.e it with care. We do know that many national banks have recklessly run races to obtain deposits, the result of which has been disastrous.

The PRESIDING OFFICER. The amendment will be printed and referred to the Committee on Finance.

DEATH OF REPRESENTATIVE LEE. Mr. BARBOUR. Mr. President, I desire to give notice that ·

on Friday, the 4th of March, at 3 o'clock, I shall ask the leave of the Senate to take up for consideration the resolutions which have come from the House of Representatives to this body in reference to the death of William H. F. Lee, late a Representa­tive from the State of Virginia.

title, and, with the accompanying paper, referred to the Com- WORLD'S COLUMBIAN EXPOSITION. mittee on the Judiciary. . . . . The PRESIDING OFFICER laid before the Senate a message

Mr. MANDERSON. I ~lso mtroduce t~~billsof hke rmport, from the President of the United States relative to the World's for refer:ence to the Com.m1ttee OJ?- the Judiciary. . Columbian Exposition; :;which was read, and, with the accom-

The bil~ {S. 2327) to amend sectwn 545~ of the ReviSed S!-atutes l·panying papers, referred to the Committee on the Quadro-Cen­of t~e '£! ru ted. States to preve~ t and _Pun~h persons for willfully tennial (Select), and ordered to be printed. mutila~mg cOins was r~a;d twice by 1ts title, and referred to the The message is as follows: CoTIDmlh btteille(oSn 2th328

e J) udiOlary · . 5 f "An .· . To the Senate and House of Repre8entatlves: e . · to a;mend sect~on 0 act authonzmg I transmit herewith, for the inf{)rmation of Congress, the annual report of

the appomtment of receivers of national banks, and for other pur- the World's Columbian Commission, a supplementary report of the sa.m.e poses," was read twice by its title, and referred to the Committee Commission submitted February 16, 1892, the report of the Board appointed on the Judiciary by me under section 16oftheactof April25, 1890, to have charge of the exhibit

. · . . . to be made by the Executive Departments, the Smithsonian Institution, the Mr. SHOUP mtroduced a bill{S. 2329) grantmg to the Uruver- Fish Commission, and the National Museum, and the report of the board of

sity of Utah a site off the public domain; which was read twice lady ~anagers provide9- for by section 6of the act referred to. by its title and referred to the Committee on Public Lands The mforma~on fnrnished l;IY these repo;rts as to the progress of the work

' . . . • is not only satisfactory but highly gratlfymg. The plan and scope adopted Mr. VANCE mtroduced a bill (S. 2330) for the relief of St. and the site and buildings selected and now being erected are fully commen-

John's Lodge Ancient Free and Accepted Masons, No.3, of New suratewiththena~nal ~nd international char~te': of the en~rtse con­Berne N c · which wa-s read twice by its title and with the templated by the legiSlation of Congress. The Dlm01s corporation has fully

' · . ·' . ' ' . complied with the condition of the law, that$10,000,000 should be provided, and accompanymg paper, referred to the Committee on Clanns. the Government Comm..ission reports that" the grounds and buildings will

Mr. ALDRICH introduced a bill (S. 2331) for the erection of a be themostextensive, adequate,andornateeverdevotedtosuchpnrpo.ses." Public building in the city of Woonsocket R.I.. which was read Itse~ms, however, tha.tfromfiveto eight millions ~f dollars more w111, :In the

. . . ' . ' . . opinion of the local board and the National Commission be necessary to pre­twice by Its title, and referred to the Committee on Public Build- pare the Exposition for a complete and successful inauguration. It will be ings and Grounds. noticed from the reports that ft was first proposed by the local commission

BAYLESS w. HANNA. to ask of Congress a loan of $5,000,000, to be Yepaidfromreceipts, and that the National Comm..ission approved this suggestion. Subsequently the llllnois

Mr. VOORHEES. Some weeks ago I introduced a. bill (S. E~sitionCo~rationreconsidereditsactionanddetermmedtoru>kasub-

2047) for the relief of the heirs and legal representatives of 8~:S0:p~l~en~ report of the National Comm..ission seems to approve

Bayless W. Hanna, deceased, late envoy extraordinary and min.- this amended proposition. I have not myself that detailed information as ister plenipotentiary to the Argentine Republic, and had it re- to the financial necessities of the enterJ;>rise which would enable me to form

terred to the Committee on Claims, which I am satlS• fied was not an independent judgment of the a.ddit10nal amount necessary, and am not, therefore, prepared to make any specific recommendation to Congress upon

he committee to which it should have gone. I ask that the bill the subject. The committees of Congress having this matter in charge Will ~y be recalled from the Committee on Claims and referred to undoubtedly obtain full and accurate information before final action. The h Exposition, notwithstanding the lim.1tation.s which the act contains, is an

t o Committee on Foreign Relatipns. enterprise to which the United States is so tar committed that Congress

/

/

1384 CONGRESSIONAL RECORD-SENATE. FEBRUARY 24,

ought not, I think, to withhold just and reasonable !urther ..support, if the local cox:poration consents to proper conditions.

Liberality on the nart o! the United States is due to the !oreign nattbns that have respondea 1n a. friendly way to the invitation o! this Government to participate in the EXJ)Osition, and will, I am sure, meet the approval ot our people. The Exposition will be one o! the most illustrious incidents in our civic history.

I transmit also certain resolutions adopted by representatives o! the Na· tional Guards o! the various States appointed by the governors to attend a convention which was held in Chicago on the 27th o! October, 1891, with a view to consider the subject o! holding a military encampment at Chicago during the Exposition.

BENJ. HARRISON. EXECUTIVE MANSION, February U, 1892.

ENROL.LED BILLS SIGNED.

A message from the House of Representatives, by Mr. T. 0. TOWLES, its Chief Clerk, announced that the Speaker of the House had signed the following enrolled bill and joint resolution; and they were thereupon signed by the Vice-President:

A bill (S. 1183) to extend the privileges of the transportation of dutiablemerchandisewithoutappraisement to the port of San­dusky, Ohio; and

A joint resolution (S. R. 45) to regulate licenses to proprietors of theaters in the city of Washington, D. C., and for other pur­poses.

SENATOR FROM IDAHO.

The VICE-PRESIDENT. If there be no further morning busi­ness that order is closed, and the Calendar undAr Rule VIIl will be proceeded with. ·

Mr. MITCHELL. I move that the Senate proceed to the con­sideration of the contested-election case of Clagett us. Dubois.

The VICE-PRESIDENT. The question is on agreeing to the motion made by the Senator !rom Oregon.

Mr. PADDOCK. Mr. President, I had hoped that the Sena-• tor would withhold this motion to-day and ·auow the Senate to

proceed with the bill which was under consideration yesterday and upon which I had the floor, with an uncompleted speech

· when the Senate adjourned. I had expected to go ahead this morning and make further answer to the Senators on the other side who had spoken against the measure. But I understand that the Senator from Oregon has made arrangements dating some time back by which the Senator from Nevada [Mr. STEW-ART] is expected to speak to-day. ·

The VICE-PRESIDENT. Debate on the motion can only pro-ceed by unanimous consent. .

Mr. PADDOCK. My speech is about finished, Mr.President. I only desire to say in conclusion that, under the circumstances, I feel constrained to make no further objection to the motion of the Senator from Oregon.

Mr. MITCHELL. I desire to say a word in answer to the Sen­ator from Nebraska. I should be very glad, of course, to accom­modate him, but this report has been on the Calendar something over three weeks, I think, now, and it is but justice both to the sitting member and to the contestant that the matter should be taken up and proceeded with to a close.

Mr. PADDOCK. There are two sides to that question, if the Senator will allow me.

The VICE-PRESIDENT. The question is on the motion made by the Senator from Oregon.

The motion was agreed to; and the Senate resumed the con­sideration of the resolution reported by Mr. MITCHELL from the Committee on Privileges and Elections relative to the contested seat from the State of Idaho.

The VICE-PRESIDENT. The question is upon agreeing to the first resolution reported from the Committee on Privileges and Elections, which will be read.

The Chief Clerk read the :first resolution, as follows: Resolved. That Frederick T. Dubois is entitled to retain the seat he now

holds as Senator !rom the State o! Idaho !or the !ull term commencing March 4, 1891.

Mr. STEWART. Mr. President, this is a matter of grave importance to the State of Idaho, to the contestant, and to the organization of the Senate. The majority of the committee dis­pose of the facts leadin~ up to the irregularities complained of by denominating them 'minor issues." On page 29 of the re­port I find the following:

An immaterial issue was raised in the hearing be! ore your committee, and both parties were permitted to argue it, inv~lvfug the good !aith of Mr. Du­bois and others in connection With certain resolutions in each o! the State platforms of the two political parties in the State of Idaho in the campaign preceding the election of the first Legislature o! the State of Idaho, and un· der and in pursuance o! which it is claimed that one Senator should have been chosen !rom Northern Idaho and another from Southern Idaho, the State being thus geographically divided.

It is well known to many members of the Senate that there has been a long controversy pending between these two sections of the State of Idaho. Some years ~o the Legislature of the Territory of Idaho petitioned for a diviSion of that Territory, and asked that the Northern portion be added to the Territory of

Washington. The reason urged for such division was the sepa­ration of Northern Idaho from Southern Idaho by a high range of motmtains which prevented business intercourse between the sections. It was in that controversy claimed that Southern Idaho had all the advantages of appropriations, and being the larger, exercised all the• political power, creating great dissatisfaction; but finally, when there came a prospect of creating a new Sta~ out of Idaho ·undivided, all parties ceased. the ·controversy and favored the admission of the Territory according to its then ex­isting boundaries.

But the controversy had raged so long and the natural divi­sion between the two sections was so permanent and the people were tosuchan extentstrangers to each other thatthere still ex­isted a feeling which necessarily entered into their politics. It was necessary to harmonize that sentiment and do justice to both sections. The importance of such harmony was recognized by both political parties. They agreed in their conventions and put it into their platforms that Northern Idaho should have one of the two Senators and Southern Idaho the other. That having been done, the election took pla{}e with a clear understanding that it should be carried out.

This wa.s something more than an ordinary pledge in a plat­form, because it had reference to a pending difficulty which had a real foundation. There is no intercourse between Northern and Southern Idaho except for political purposes, and both par­ties found it necessary to harmonize the difficulty existing by a. fair distribution of the offices.

I am not one of those who regard pledges to the people as trifling matters. I believe when any public man makes a pledge ·to the people prior to election he is bound to carry out that pledge in good faith. I know of no greater political crime than to obtain office. by violating a solemn pledge to the people. Such a pledge ought to bind every honest and honorable man. It is a growing complaint throughout the country that politicians violate their pledges to the people. It creates dissatisfaction, destroys con­fidence, and nothing is more prejudicial to good government than a violation of pledges to the people.

There is no dispute about this pledge. It was deliberately, solemnly given, a compromise by which the votes of the people were obtained.

There was placed on file on the 27th day of February, 1891, the affidavits of a majority of the Legislature stating how this pledge was made and how it was violated. Although that charge has been made and has been on :file here for nearly a year, no attempt has been made to deny it, and no denial has come from any source; and in considering this question, as I shall hereafter endeavor to show, the violation of this pledge was the leading cause of the disregard of the statute.

Now, I ask the indulgence of the Senate to call attention to a portion of these affidavits as a sample of the understanding and the mode of its violation. I read :first the affidavit of eight mem­bers of the Legislature who were for Mr. Clagett throughout the contest: STATE OF IDAHO, County of Ada, 88:

John A. Finch, J. S. Langrishe, J. F. Cameron, C. D. Porter, A. L. Scofield, John Hanly, Ira S. Sperry, and Henry Armstrong, being tl.rst duly sworn, do say under oath, each !or himsel! and not one tor the other, that we are all Republicans in politics and members of the present session o! the Legisla· ture of the State o! Idaho, and all voted !or William H. Clagett !or United States Senator at the election that was held in December, 1890, and again voted !or him at the second election held in February, 1891; that as among all o! the candidates be! ore the convention in December, Mr. Clagett was our tl.rst choice. and we have supported him in both elections: that the !our Re· publican candidates !or Senator, namely, Messrs. SHOUP, McConnell, Dubois, and Clagett, all had their rooms. commonly called headquarters, at the Cap­itol Hotel, in Boise City, and that these rooms all adjoined each otber.

That during aU o! the preliminary arrangements prior to and down to the close o! the joint convention on December 18, 1890, being what was known and callea the original Clagett men, we were almost constantly at his head· quarters and consulted by him as to the various moves on the Senatorial checkerboard, and were ad vised as to his actions and motives on every propo­sition o! any special importance: that the two sections o! the State are di­vided by a very high range of mountains known as the Salmon River Range, running !rom eru~t to west, over which there is no regular means o! commu· nication,and that it is practically impossible to go from North to South Idaho except by making a detour around throughtheStateson the eastor the west ofldaho; that this total separation of the two ends o! the State in all matters o! business connection gave rise years ago to a proposition to annex North Idaho to the Territory of Washington, and that this agitation was kept up !or a period of many years, resulting in a very great alienation between the two sections, and especially on the part o! the old inhabitants 1n the northern portion o! the State. ·

That when the Republican State convention met at Boise in August, 1890, it was deemed wise to draw the people o! the State together in bonds o! mu­.tual sympathf and :3upport, and to that end it was proposed to insert a plank in the Republican platform in favor of equal representation of the two sec­tions of the State in the Senate of the United States. That a resolution to this efrect was reported by a minority o! the committee on resolutions, was debated at length before the convention, was adopted by a vote of 61 to39, and was then addea to the Republican platform as a part thereo! by the una.ni· mous vote of the Republican convention; that !our o! the five northerncoun· ties are Demoeratic in sentiment or exceedingly doubtful, but that in conse­quence o! the feeling o! confidence which the insertion of that pledge in the Republican platform gave to the people, all five counties went Republican, and sent solid Republican delegations to the State Legislature.

That when we reached Boise we !ound that Mr. Dubois and Governor

I·

1892. CONGRESSION.A .. L RECORD-SENATE. 1385 SHOUP had formed a. combination to defeat the pledge upon which the party had carried the State; that every eirort was made by us and by Mr. Clagett to induce the Republicans ot the Legislature to abide by the platform upon which the State had been carried; that all ot our efforts were a failure, be­cause it was impossible to separate Mr. Dubois and Governor SHOUP, or t<> ~duce or persuade either one of them to state that he intended to abide by the platform of his party; that Governor SHOUP and Mr. Dubois together had23or 24 votes, and onlylacked4or5of a majority; that between Mr. Dubois and Mr. McConnell there was a deep-seated feeling ot hostility, and that Mr. McConnell declared over and over again that under no circumstances would he ever form any combination or make any arrangement by which Mr. Du­bois would be elected to the Senate as his colleague; that this hostility in part grew out of the fact that Mr. McConnell, for reasons satisfactory to himself, had refUSed to submit himself to the direction of the Republican State com­mittee in the campaign before the election, and although a Republican had made an independent canvass of his own, calling his own meetings, and in every way repudiating the political authority of the State committee; that this reeling or hostility, to our personal knowledge, was shared by many or the supporters of Mr. Dubois.

That on thenightot December17,1890, Messrs. SHoUP and Dubois took Mr. McConnell into their combination for the purpose of securing the 4 or 5 votes necessary to secure the election of the two former, and that 17 or the 18 sup­porters of Mr. Dubois voted for Mr. McConnell, notwithstanding the re­peated declarations of many of them ot hostility to him and that they would never under any circumstances vote for him. That prior to this combina­tion, on December 17, we knewfrommanysourcesthatGovernor SHOUP and Mr. Dubois were willing to form a. combination with Mr. Clagett on the same terms as wereafterwardsobtained by Mr. McConnell, namely, that Mr. Dubois should be conceded an election to the term beginn1.ng March 4, 1891, While Governor SHOUP and Mr. Clagett should be elected to fill existing va­cancies, and dra.w for terms; that Mr. Clagett absolutely refused to accept any such terms, claiming that in case he should accept them the party pledge would be dishonored, inasmuch as after March 4, 1891, the question as to whether North Idaho should have any representation in the Senate would then depend upon the mere chance of a. drawing instead of upon the tul1illment of a party pledge. And these amants do further say that from the whole tenor of Mr. Clagett's conversations with us, of a. confidential nature we are entirely satisfied and know that he voluntarily accepted de­teat rather than place his party in such a humiliating and defenseless position and leave the section of the State in which he resided unprotected in its in· terests, as it would be in case he should be elected under the proposed ar­rangement and draw the term ending March 4, 1891.

We do further say that Mr. Clagett, from the time the electio-. was held in December~ always claimed that Mr. Dubois was not elected, and when in January the drawing for terms was had in Washington and Mr. McConnell drew the term ending March 4,1891, thus depriving North Idaho of represen­tation in the Senate, he suggested to us and to others that tbe only way to save the party from dissolution in consequence of the repudiation of the party platform, was to hold another election and elect some one from North Idaho to succeed Wllliam J. McConnell for the six years beginning March 4, 1891; t;bat in the second election Mr. Clagett was a candidate, but repeatedly stated that if any pert'lon acceptable to the northern portion of the State could be found who could poll the same strength as himself in the Legislature he would without hesitation gladly support him; that the second fight which we and other Republican members of the Legislature made for him was purely voluntary on our part, and was made for the purpose of redeeming as far as possible the record of the Republican party on this subject.

. JOHN HANLY. J. F. CAMERON. H. ARMSTRONG. J. S. LANGRISHE. A. L. SCOFIELD. JOHN A. FINCH. C. D. PORTER. IRA S. SPERRY.

Subscribed and sworn to before me this 17th day of February, 1891. [SEAL). JONAS W. BROWN, Notary Public.

Mr. MITCHELL. Will the Senator yield to me for a question at that.point?

Mr. STEWART. Yes. Mr. MITCHELL. Admitting, for the sake of the argument,-and

only for that, that all that is said in that affidavit and all that is said in the other affidavits that the Senator has now read or is about to read is true, what possible bearing can it have, I inquire of the Senator, on the legal andconstitutionalquestionsinvolved in this case as to whether or not Mr. Dubois was or was not legally elected Senator from the State of Idaho? ·

Mr. STEW ART. Most important. Mr. MITCHELL. I should like to know how. Mr. STEW ART. It is claimed here that this was a mere

technical and incidental violation, and that the State ought not t<? be deprived of its choice. If, on the contrary, the statute was diSregarded for a corrupt purpose, in pursuance of a combination, then the animus of such violation is apparent, and goes directly to the legality of Mr. Dubois's election. .

Why it has been said it is merely a trifl.e that the requirement of the law to inaugurate the election by voting in the two houses separatelywas merely directory and amounted to nothing, that the organization was a technical matter, that these were very little things if it was the Legislature that did them. If by a combination the will of the Legislature was thwarted and the State of Idaho denied her choice on the floor of the Senate-if that were effected by any combination which is contrary to good morals, then the Senate should take into consideration all the violations and disregard of the statute.

I say the proceedings which led up to trampling upon the law of the land, as I shall hereafter show, are most important in­ducements to ascertain the animus and to show that it was not an accidental violation but a deliberate violation of the law to carry <_>ut. a program which was bad in morals, bad in politics, and in­JUrious to good government.

Before I read the affidavits of the Republicans setting forth particularly this combination, which was reduced to writing and which some of the persons signing it claimed was misread to

them, I will r..ead what the 8 Democratswho finally voted for Mr. Clagett say with regard to their votes and to. their proceedings: STATE OF IDAHO, County of ..tlda, ss:

Steven Dempsey, Green White, Edward S. Jewell, Frank Steunenberg, J. M. Ballentine, B. H. Smith, John Q. Dryden, and Isaac Irwin, being firs t duly sworn, say under oath, each .for himself and not one for the other, that they are all members of the Democratic party and members of the present session of the Idaho Legislature; that we all, with the exception of Mr. B. H. Smith who had lett town at the time the same was signed, signed the protest of members forwarded to Washin~n against the legality of Mr. Dubois's election; that this protest was s1gned because we were persuaded that his so-called election was wholly void. The facts and circumstances attending that election were such as reflected no credit upon the State. When the con­current resolution passed the two houses that we would on Tuesday, Decem­ber 16, 1890, proceed to elect United States Senators, as provided by law, there was no law for holding an election at that time except to elect two Senators to fill existing vacancies as required by the constitution of the State, and it was universally understood by all the members of the Legislature that that election was limited to the election of the two Senators to till such vacancies.

It was with that understanding that we voted in favor of the concurrent resolution, as we were required to bold said election within ten days from the organization of the Legislature; that the Legislature was organized on the 9th day of December, 1890, and that the second Tuesday after its organi­zation fell on the 23d day of December, 1890; that after taking the separate ballot in the two houses on December 16 without a. choice being had, the joint assembly convened on December 17 pursuant to the concurrent resolution, and the universal understanding among the members of the Legislature, as shown by their expressions on all occasions, was that the joint assembly met to elect these two Senators only. The balloting on the first day in the joint assembly resulted in no choice. ·

On the next day, December 18, when the joint assembly met, Senator Gunn offered the resolution in the joint assembly to,proceed to fill the vacancy oc­curring March 4, 1891, immediately after the other two Senators should be elected; that late on the night of December 17we became advised or the fact that Messrs. SHOUP, McConnell, and Dubois had formed a combination to elect themselves the next day, but we did not learn until a few moments before the meeting of the joint assembly on December 18 what the programme was or how it was expected to be carried out. 'l'hat the whole proceedings in the joint assembly indicated a. cut and dried programme, and the rights or the minority were overruled, in spite of the fact that Senator Gray, acting as the spokesman and representative of the minority or twenty-five members ar­gued and protested against the election of the third Senator, for the reason · that such Senator could not. legally be elected unt.il the second Tuesday after the organization of the Legislature.

That these amants are informed and believe that the reason why no con­current resolution was oirered in either house to elect the third Senator at the same time that the others were elected was because such resolution could not have passed the senate, and that the action taken in the joint assembly to violate the law as to the method of electing the third Senator, and the time for such election, was necessitated by the terms of the combination, which in all human probability would have been dissolved if the election of the third Senator had been postponed until the time provided by law for such election. And these a.mants aver and charge on knowledge, information, or belief that the election of Mr. Dubois was due entirely to the . violation of law by him and others in bringing on the election ot the third Senator by action taken in the first instance in the joint assembly instead of in the two houses acting separately, and in advance of the time fixed by law; that he owes his election to such violation of law, and that without it he could not have been elected· that this statement of opinion and belief is based upon a multitude of cir: cumstances some of which are known to one, and others to others of these amants, whlch all tend to the conclusion stated above, and which call tor in ~~~~s.a. thorough investigation on the part of the Senate of the United

And these amants further say that during the session of the joint assembly, on December 18, Senator Gray, acting on behalf ot the minority in such as­sembly, in addition to objecting to the election of the third Senator for the reason that it was in advance ot the time fixed bylaw, also objected that such an election at that time was in violation of the resolution of the separate houses calling the joint assembly together, and that such election at that tiree would be illegal for the further reason that no action had been taken thereon by the two houses acting separately, as required by the Revised Stat­utes ot the United States; that on December 19, 1890, J. M. Ballentine, one of these atnants, oirered an amendment to the journal of the house when the same was read upon that day, setting forth the reasons as stated by Judge Gray as the ground for his protest and that of the minority, and asked that the JOUrnal be amended accordingly; that such req nest or motion was denied by the house, which refused to place upon its journal such statement ot fact as was strictly according to truth, and that the amendment thus rejected but recorded in the journal as rejected, states the t.ruth relating to the o bjec: tions made to the election of a third Senator on December 18 by Senator Gray. .

Here is something to which I desire to call particular atten- ' tion.

Mr. MITCHELL. Will the Senator please giye the dates of these affidavits? How long was it after the election of Mr. Du­bois that they were made?

Mr. STEWART. They were made ashorttimeafterthe elec­tion of Mr. Dubois.

Mr. MITCHELL. How long after? . Mr. STEW ART. The one I was reading was made on the

18th day of February, 1891. Mr. MITCHELL. Two months afterwards. Mr. STEW ART. Yes; two months. That calls my attention

to another matter which will show that there was no two months about this. You can not doubt that twenty-eight men could tell the truth after two months. Does the Senator suggest anything that would prevent them from swearing to the truth? Has any-body denied it except in argument? .

Mr. MITCHELL. I undertake to say, and the committee have said in their report, that this combination to set aside an election that· had taken place did not occur to these parties until some weeks after Mr. Dubois's election.

Mr. STEW ART. The committee have said a .great many things in their report which I shall refute and show the inac-

/ .

f

1386 CONGRESSIONAL RECORD-SENATE. FEBRUARY 24,

curacy of. I shall beg leave that that sha.ll not ba taken as evi­dence here until it is verified by proof. Many things are said in that report which the committee took from counsel and which they could not have investigated. I complain of that report, and shall direct my attention to its inaccuracies. I do not think the committee has given its personal attention to some of these mat­ters, but I think they were misled by counsel.

These affidavits we:re filed here on the 2'7thof February, 1891. There was a protest filed here on the lOth of January, setting forth these same facts, which I shall hereafter call attention to.

But I was proceeding to read this affidavit. It appears when this joint convention, as they called it, when this assembly were collected together without authority, were in session and propos­ing to elect a third s.enator, there were matters w~ch tended to mislead them and mduce them to pass the resolution to elect the third Senator. I go on now with this same affidavit; it pro­ceeds:

We do :tu.rther say that during the debate that sprung up on the introduc­tion of the resolution otrered by Sena.t.or Gunn in the joint assembly for the purpose of carrying the resolution to its passage and showing that it wn.s proper to elect the third Senator in ad:r-mce of the time fixed by law and Without ta.klng a separate vote in the two houses., a dispat~h. Pll_!l><?rting to be from Congressman Sweet, was read by Speaker Fenn. in which it was stated that Senatol'S Edmunds, MANDERSON, and others had tated that there would be a vacancy to be filled by this Legislature after Mareh 4, 1891, and that it was competent for the Legislature to eloct a third Senator t.o fill sucl_l vacancy; that this dispatch was evidently assumed by the supporters of Messrs. SHOUP, McConnell, and Dubois as authorizing the Legislature to proceed to elect the third Senalior in the manner that was pursued, and that the requirements of the Revised Statutes of the United States as to the method and time of electing him were immaterial. And these a.ffiants are wholly satisfied from what they saw in said joint assembly that this dispatch had the e!Iect of overriding any scruples the members of the Legislature support­ing Mr. Dubois might otherwise have had to electing the third Senator at that time.

There are several other affidavits in regard to this dispatch and how it affected the members and those who were misled by it.

This affidavit goes on as follows: And these afllants further say that however it may have been among the

Republican members of the Legislature on thenight of December 17, that the Democratic member who had no Democratic candidate with a headquar­ters were. liD.til the joint assembly met, ignorant of the terms of the combi­nation between Messrs. SHOUP, McConnell. and Dubois, and only knew in a general way at that time that some combination had been formed between them, and that even this intelligence was conveyed to us only a few moments before the joint assembly convened. That the springing of the resolution o1!ered by Senator Gunn was a complete surprise to us, and that we were not prepared at that tiro e to ma.ke an organized opposition to the adoption of the resolution or to consider, as ought to have been considered, the question of its legality; that had a concurrent resolution been o1Iered in the two houses acting seJ)arately ample op-portunity would have been allowed to examine the authorities and show the illegality of such action; and that bythecom·se that was taken by the supporters of Messrs. Dubois, S'HOUP, and McConnell these afflants were deprived of one of the most valuable aids in the proper selection of a"UnitedStatesSenator; that if opportunity had been given quite a number o! those who were embra.ced in the combination would themselves have receded from the proposition of electing the third Senator at the same time as the othe1· two.

E. S. JEWELL. GREEN WHITE. ISA.A.CffiWIN. B. H. SMITH. JAMES M. BALLENTINE. STEPHEN DEMPSEY. JOHN Q. DRYDEN. FRANK STEUNENBERG.

Subscribed and sworn to before me this loth day of February, A. D. 1891. [sEAL.] JONAS W. BROWN, Notary Public.

This is signed bJ' the eight members of the Democratic party who voted for Clagett. · . The Senator's suggestion with regard to a combination, and the allegation in the papers that Mr. Clagett had been forming a combination to secure his election, iB a suggestion that reiiects upon the members of the Legislature who elected him. Did he allow that to remain on your desks for a yeae without answering it? Did the Democratic members of the Legislature rest under that imputation? How did they meet that same talk of combi­nation to elect Mr. Clagett? Since the Senator has said there was a combination to elect him, I will show with what prompti­tude that was denied. STATE OF IDAHO, County Of .Ada, 88.'

Stephen Dempsey, Green White, Edward S. Jewell, Frank Steunenberg, B. H. Smith, John Q. Dryden, J. M. Ballentine, and Isaac Irwin-

The same as before-being first duly sworn, say under oath, each for himself and not one for the other, that they are all members of the Democratic party and members of the First Legislatm·e of the State of Idaho, now in session; that they voted for William H. Clagett for Senator at the recent Senatorial election; )hat owing to the large Republican majority in the Legislature of 34 none of us expected at any time that it was possible to elect a Democrat, and for this reason, at th~ Senatorial election in .February, when Mr. Clagett was elected, we were of the opinion as Democrats that we should stand together as a. party, and that this attitude of the Democratic members was based upon a ca:ncus taken by them as a party in the Legislature,

We do further say that at no time did we ever have with Mr. Clagett, or any one acting in his behalf, any understanding agreement, bargain, or con­tract of any sort whatever, but that our action 1':xi supP.ortinghim was purely and solely because, first, we knew that it was impossible to secure a Demo­cratic Senator, and, secondly, because we were of the opinion that his elec­tion would redound to the interest of justice and right.

We make this a.tndavit for the reason that we have heard thatit is reported 1n Washington that charges have been made by Mr. Dubois and his friends there that Mr. Clagett's election wa.s due to a bargain made between him and the Democratic members.

We do fUrther say that at no time prior to his election did Mr. Clagett ever in person solicit the vote or either one of us, nor did any friend of his in his behalf, and that one of the reason we favored his election was because ha never attemJ)ted at any time to interfere with our perfect freedom of actioD as representatives of a. party opposed to his own.

And tm·ther we say not. JAMES M. BALLENTINE. JOHN Q. DRYDEN. ISAAC IRWIN. B. H. SMITH. STEPHEN DEMPSEY. E. S. JEWELL. FRANK STEUNENBERG. GREEN WHITE.

Sworn to before me and subscribed in my presence by the above-named Stephen Dempsey, Green White, Edward S. Jewell, Frank Steunenberg. J. M. Ballantyne, B. H. Smith, John Q. Dryden, and Isaac Irwin, on this 7th day of February, A. D. IS9L

[SEAL.] JONAS W. BROWN. Notary Puhlic.

I will not weary the Senate with many affidavits, but I must call attention to one or two more. All the members of the Leg­islature who voted for Mr. Clagett have made affidavits stating the facts how this thing was done. I will read the affidavit of J. C. Martin. There is a large number of affidavits going into this matter in great detail. STATE OF IDAHO, County of .Ada, 88.'

I, J. C. Martin, first dnly sworn, do say under oath that I am 46 years of age, a Republican in politics, and a representative of Latah County in the pre ent session of the Legislature of Ida,.ho; that long before the Republican State convention met in August, 1890 all through North Idaho and also 1n

. portions of South Idaho, through the public press and otherwise, the public senti:ment was aroused in favor of giving equal representation in the United States Senate to the two sections of the State; that when the Republican State convention met at Bois6, as the result of long and earnest discussion. the party placed in its platform a plank declaring that justice to all sections of the State required that one of the United States Senators hould be taken from North Idaho; that this was, and was un-derstood to be, a party pledge to that etrect and entered more prominently into the canvass than anyothet one propqsition. and -on this pledge the Republicans succeeded in carrying every cotlbty north of the Salm-on River Range and sending an unbroken Republican delegation to the Legislature although all of the counties of North Idaho, with the exception of Latah, were either Democratic in senti-ment or exceedingly doubtfuL .

I do further say from my knowledge of the facts attending that election that it was to this plank in the platform that the State went Republican; that it is a matter of public lmowledge that the Democratic party in tha.t campaign.inten.ded to place slieh apla.n.k in theirplatform, and tomaketheir princtpal fight to carry the State in the northern portion of it; that theRe­publican convention met first and anticipated the action of the Democratic convention by placing·it in its platform, and that it was thereafter followed by the Democratic convention when it met, so that both parties were pledged to this proposition; that when the canvass opened the pledge of the Repub­lican party was taken up by the great mass of the Republica:ns wit.h the greatest enthusiasm, so that at an early portion of the canvass it became evident that North Idaho would go overwhelmingly Republican; and when this fact became evident the Democratic managers lost confidence in their canvass and did not ma.ke, as I am informed and believe, even a vigorous canvass in the southern portion of the State, whereby the State was carried for the Republican party.

The Republicans got the advantage of placing this in their platform first, and that iB the way they carried the State.

The affidavit proceeds: That when I came to Bois6 City to attend the Legislature I did so especially

for the purpose of seeing this pledge carried out in good faith by the election of some bona fide residents inNorthid hotoone ortwoSenator~hips, which at that time and theretofore were supposed to be only two that were to be filled; that when the drawing of the Wyoming Senators aftel• the election took place, it was ascertained that in all probability one of the two Senators would go out on the 4th of March, 1891, and this fact was taken advantage ot by Messrs. SHOUP and Dubois. when they found that by their combined strength they did noli have a. majority of the Legislature, to start tile third Senator proposition. in the hope that they would thereby be able to obtain sufficient votes from some northern candidate, which, added to their own, would give them a majority, taking such northern candidate into the com­bination, upon a distinct understand..f:ng that Mr. Dubois should be elected to the six-year term at this session of the Legislature.

I found that it was impossible to break the combination which Messrs. SHOUP and Dubois had formed, although every etrort was made to detach them one from the other and induce them respectively to carry out in good faith the platform of their party, upon which one of them had received the su!I:rages of a majority of the people. Finally, on the afternoon of December 17,1890, I was told by Mr. Brown, Mr. McConnell's neph~w. who Vl'aS largely managing his Senatorial canvass, that a. combination would be formed for the purpose of electing :M.essrs. SHOUP and McConnell for the snort terms to fill existing vacancies, and Mr. Dubois for the term beginning March 4, 1891; and that evening I met at Mr. McConnell's room Messrs. Welfs, Green. Scat­taboe, Brigham, a.nd Wing, members from North Idaho, and Senator Gunn, from South Idaho, who seemed to be managing the combination as among themembersonbeha.lf of Mr. McConnelL Mr.Wingrefused to have anything to do with it and shortly left.

A paper was gotten up in !t:lr. McConnell's room, which I read and signed; the purport of the paper was that Mr. McConnell should be elected first, Gov­ernor SHOUP second, and that when the proper time came, fixed by law, Mr. Dubois was tt> be elected. At the same time that this paper was being pre­J>ared and signed in Mr. McConnell's room, another paper, as I was in­formed, was being prepared and signed by the supportel'S of Mr. Dubois, 1n the adjoining room, occupied by Mr. Dubois, and I saw the gentlemen who were known as Dubois men all gathering into that room for uch purpose.

After we had signed the paper in Mr. McConnell's room, Mr. Brown took it out into the room of Mr. Dubois, from which he returned and told us that Mr. Dubois's friends had signed a paper, which as a friend of Mr. McConnell, he would not consent to; that Senator Shoup, from Custer County, a brother of GEORGE L. SHOUP, refused to accede to the proposition to elan<; Mr. McCon­nell first, and insisted upon it that his brother should be elected first; and that the paper which had been signed in Mr. Dubois's room was one that he would not consent to havethefriendsof Mr. McConnell sign; tha.tMr.Brown then returned to Mr. Dubois's room and after awhile came back into Mr. Mc­Connell's room and informed us that he had dictated a new paper for Mr. Dubois's supporters to sign, and that they were then engaged in signing the

' -

1892. CONGRESSIONAL RECORD-SENATE. 1387 same, and that some of Mr. Dubois's supporters had lett for the night and th.ey were hunting them up to get them in to sign this second paper. The pa.peT written in Mr. McConnell's room, signed by his friends, and myself among the number, was destroyed, and we aft erwards, on the same night, signed the second paper drawn in Mr. Dubois's room and stated by Mr. Brown a.s having been dictated by him.

The only difference that I remember between the two papers was 'that in­stead of electing Mr. McConnell first and then Governor SHOUP, it was changed to elect Governor SHOUF first and then Mr. McConnell, and it was also under­etood that we were to elect on the next day Governor SHoUP and Mr. McCon­:pell only, and were to elect Mr. Dubois wpen the time prescribed by law $hould arrive for electing the third Senator. I did not read the paper signed by Mr. Dubois's friends and then brought to Mr. McConnell's room and signed by us; the paper was read in our presence by Mr. Brown, and its purport was as I have previously stated, that Mr. Dubois was to be elected, not at that time, but when the time arrived prescribed by lawfortheelectionof the third Senator.

It was understood that Mr. Dubois was to take his chances on being able to hold the combination together until this time should arrive, and I for Ol,le l>elleved that it was utterly impossible for the combination to exist long:

!cough to allow the second Tuesday after the meeting and organization of

he Le ature to arrive. If it had been prop6Sed that Mr. Dubois should elecf!f immediately after the other two, I would not under any circum­

stances have gone into the arrangement. because I knew such election to be ~ontrary to law, and also because, as a North Idaho man, I knew that if we elected the third Senator at the :oame time as the other two it would endanger ~e result of my section of the State having any representation after March 4, 1891.

Mr. GEORGE. What was the date of that agreement? ~r. STEWART. The date of the agreement was the night of

the 17t1.; the election occurred on the 18th. Mr. MITCHELL. What is the date of the affidavit? Mr. STEW ART. That is not essential. I suppose that th~y

could swear to the truth and ha¥ it made known afterwards as well. I do not think there is anydoubt about that. Nobody has ever denied that combination. It was in writing, and several of the parties say they did not understand it the way it was read; and then there was brought to bear, as they stated, the influence of these telegrams, and they got two or three votes of men who had been misled by the telegrams, and rushed the election through.

Mr. GEORGE. Werethoseagreementsreferred to made after the election held separately in each house and before the election finally resulted in the completion of the whole thing?

Mr. STEW ART. They voted separately in the two houses on the 16th. Then on the 17th they voted in joint assembly.

Mr. GEORGE. And failed to elect? Mr. STEWART. Andfailed to elect. Mr. GEORGE. And on the night of the 17th they made this

agreement? Mr.STEWART. Yes. . Mr. GEORGE. And the next day they carried out the pro­

gramme? Mr. STEW ART. And the next day they carried out the pro­

gramme. But I return to the affidavit of Mr. Martin: The above is the understanding which I and other supporters of Mr. Mc­

Connell who signed the~,>aperhad, and we never had any 1deathatit was con­templated to elect the third Senator immediately after the two vacancies were filled, until Senator Gunn o:t'fered the resolution to that e:t'fect in the joint as· sembly on the next day, December 18, 1890. I was taken completely by sur­prise by this resolution of Senator Gunn, and when Judge Gray, in the joint convention, otrered his substitute to limit the election to the two Senators only, I voted for it, and voted against the passage of the resolution, and in favor of the motion to adjourn after the election of Mr. McConnell.

After the second motion to adjourn was voted down and the joint assembly pro~ded to vote for the third Senator, I voted for Mr. Dubois because the previous votes on the substitute and the adjournment showed that we could not prevent the third Senater from being voted for at that tilne, and I did not look upon the vote as amounting to anything, for the reason that this election was manifestlf illegal, as I believed, on account of its violation of the acts of Congressrelatdn.gtotheelectionof aSenatortofillafUturevacancy; andeven then I would have voted for Mr. Clagettinstead of Mr. Dubois for this third term, because of the trickery which had been practiced upon me and other friends of Mr. McConnell in the Legislature in bringing on this election in vio­lation of law, it I had pot known that my vote, and others also who were in favor of Mr. Clagett, could not change the result.

I do further say from the facts above stated, and from all the circumstances attending and surrounding t;he so-called election of Mr. Dubois, that he owes his election, it elected at all, to a palpable violation of the laws of the United States, and that without such violation he could not have been elected; from my knowledge of the hostility existing between Messrs. McConnell and Du­bois and many of their respective supporters, I am entirely satisfied that had the agreement been carried out to wait until the time came around prescribed by law for electing the third Senator, that long before this time arrived the combination would have dissolved by its own inherent weakness, and it was because or this knowledge evidently on the part of Mr. Dubois that they either changed the programme after I and other of Mr. McConnell's friends had signed the paper, or else he had deliberately obtained our signatures by false and fraudulent representations made to the effect that he was willing to take his chances of holding the combination together until the regular time pre­scribed by law for electing the third Senator.

I do further say that when Mr. McConnell drew the term ending March 4, 1891, and that had come to pass which I had always feared, that after that date North Idaho would be without a Senator, and the platform of theRe­publican party was dishonored, believing as I did that the interests of my State and the preservation of the good faith of the party were of paramount 1mportance to all other considerations, and further believing that Mr. Dubois had not been legally elected, when it was proposed to hold a. second election for a. Senator to succeed William J. McConnell, I supported the-movement, and voted for Mr. Clagett at all stages of the contest.

To summarize the whole matter, I came to Boise to get equal representa­tion in the Senate for my section of the State. On account of the combina­tion between Messrs. SHOUP and Dubois, it was impossible to get it as it was pledged, and I was forced to take the step that I d1d in order to get the only thing that was possible, as it seemed to me at that time, namely, a chanoo for

North Idaho to draw a Senator; and when I found that this drawing, how­ever brought about, left us com~,>letely out in the cold, I was determined, if :possible, to still secure the prinCipal object of my coming to the Legislature, m the election of some northern man, so that our local ihterests might be protected and the good faith of the party kept intact. And further I say not.

J. C. MARTIN. Subscribed in my presence and sworn to before me by the said J. C. Mar-

tin on this 16th day of February, 1891. [SEAL.] JONAS W. BROWN, Nota1'1J Public.

Mr. MITCHELL. Will the Senator allow me at that point? Mr. STEW ART. Yes, at any point. Mr. MITCHELL. Suppose that Mr. McConnell, instead of

having drawn the third term, had drawn the long term, so that we should have had a Senator from Northern Idaho as well as from Southern Idaho, what would he say then as to the election of Mr. Dubois? Would it have been valid?

Mr. STEWART. No, it would not have been valid. Mr. MITCHELL. Mr. Clagett himself seems to plp.ce the fact

that he is here contesting upon the ground that Nortbern Iaaho has been deprived of a Senator.

Mr. STEW ART. No, he does not do that. He places it on the ground that the Dubois election was illegal and that the motive which induced the Legislature to hold a second election was that North Idaho was entitled to a Senator and by that ar­rangement it was deprived of it. You ask me if the moral of this would have been otherwise if North Idaho had won in the game of chance? I say that no moral consideration entered into the combination, and that had Mr. McConnell drawn the four­year term it would not have changed the political immorality of such combination.

Mr. MITCHELL. I am not talking about the morality of it. I am talking about the legality.

Mr. STEW ART. The legality would have been unchanged and the moral of it would have been unchanged. Because a man wins at a game of chance, does that therefore make it the less gamblingr They had no right to enter intosuchacombination. Mr. Clagett stated in the ·correspondence, whjch is here, that he would not make any combiaation or arrangement that would take a chance of violating the platform, because his proposition was to carry out the platform in good faith; and in the correspond­ence here on file he proposed that they first elect two Senators, as provided by the constitution of the State and the law of Con­gress, and then when the drawing was had here for terms to elect the third Senator, and elect him from that section of the State that had drawn the short term, and in that way the pledge in the platform could surely be kept. He would not make any other al'rangemeilt; he would not gamble away the party platform or the interests of his section. · '

Mr. GEORGE. I should like to ask the Senator a question. The PRESIDING OFFICER (Mr. JoNES of Arkansas in the

chair). Does the Senator from Nevada yield? Mr. STEW ART. I do. Mr. GEORGE. I was listening to the account given by the

Senator from Nevada as to the conduct of the Republican party in the State of Idaho. I want to know of the Senator if I am right in the impression which I got from the reading of the affi~ davits of the Republican party-a party I have sometimes heard called the party of God and morality-that that party deliber­ately put in their platform · adopted by a State convention a solemn pledge to the people of Idaho that they would give one Senator to Northern Idaho and one Senator to Southern Idaho; also that upon that pledge the State was carried for the Repub­lican party, and without that pledge it could not have been car­ried by that party. If that be so, what I wish to know is if after all that the Republican party could deliberately violate their pledge? Was that the amount ofit?

Mr. STEWART. These candidates did it, there is no doubt about that; and the Republican party carried the State because it came out firat with that in its platform.

Mr. GEORGE. Did not the members of the Legislature join in that?

Mr. STEWART. The candidates got a majority; .and several of the members who voted for it and made this majority of two or three have explained that they were taken by surprise, and did not understand what they were doing; that they were mis­led, and did not have any time to consider their action, and that it was sprung upon them.

Pretty good men may do wrong in a mob like that and may get their votes wrong. They are not all bad men. They rectified the wrong as soon as they got an opportunity, and a majority of the Legislature voted in separate houses for Senator, and then went into joint convention and elected Mr. Clagett. That is the will of the State, and that is according to the platform of the two parties. That is honest; that is not trickery. The other was a combination in writing to spring it on the night of Decem­ber 17, after they had voted one day in joint assembly without giving anybody a majority. Who ever heard of such a proceed-ing as that before? ,

1.388 " CONGRESSIONAL RECORD-SENATE. FEBRUARY 24,

Mr. GEORGE. If the Senator will allow me, I wish to inter~ rupt him here on a point that I regard as more material than the one I interrupted him on just now. I have listened to the Sen~ tor with some interest, and I wish to know ii this is the fact as developed, that no separate proceedings were ever had in either house of the Legislature looking to the election of this third United States Senator? Is that the fact?

Mr. STEW ART. That is the fact as to the election of Mr. Du­bois.

Mr. MITCHELL. That we deny, as far as the majority of the committee is concerned.

Mr. STEW ART. I will show that it is the fact. That I am coming to. I have not come to the law of the case yet

Mr. GEORGE. Is it the fact that no separate proceedings were had in the houses in reference to it?

Mr. STEW ART. None. Mr. GEORGE. Now, is this a fact, that the two houses took

their vote for Senators on the 16th separately, according to the statute?

Mr. STEW ART. Yes. Mr. GEORGE. And failed to elect? Mr.STEWART. Yes. Mr. GEORGE. They then met on Wednesday, the 17th, and

took a vote for each Senator? Mr. STEWART. They took a vote for one Senator. Mr. GEORGE. For one Senator? . Mr. STEWART. Yes. Mr. GEORGE. And failed to elect? Mr. STEWART. Yes; failed to elect. Mr. GEORGE. And up to this time they were all proceeding

on the idea that no election would be held for the third Senator? Mr. STEWART. That is stated in the affidavit of all of them

and the proceedings show it. There are twenty-eight men all swearing that they were proceeding on that idea.

Mr. GEORGE. On the night of Wednesday, after they had made this failure, then these contracts or agreements were re­duced to writing, and then the next morning a resolution was introduced to go into the election of a third Senator, and that was the first time, so far as the record shows, that any resolu­tion had been proposed to go into an election on that day for the third Senator . .

Mr. STEW ART. There had been a motion made in one house. Mr. GEORGE. But not passed. Mr. STEW ART. There had been a motion to elect a third

Senator, but it was almost immediately withdrawn. This was six days before the election. .

Mr. GEORGE. Bt:lt it was not passed. Mr. STEWART. It.was not passed. It was withdrawn. It

was merely put in by one of the members. ~ Mr. GEORGE. Then I call the Senator's attention to this as

a principle of law, ii it meets his approbation, that this joint convention, which was the result of the failure to elect under the statute on the 16th, was a convention of a special jurisdiction having no other power than that named in the statute, and that was to vote for the Senators for whom they had voted before and about whom they had failed to agree.

Mr. STEW ART. I have no doubt but that is the law. !thad no more jurisdiction to elect, as I shall go on to show, than any number of men at a meeting anywhere. Thefactthattheywere members of the Legislature did not make them a legal body. They were unknown to the law entirely when they commenced and proceeded upon this basis, as I shall proceed to show. '

Before I proceed to the question of organization and the stat­ute I wish to call attention to the law. I was on the Committee on the Judiciary when the law was prepared and Mr. Trumbull was chairman. Mr. Trumbull, as the organ of the committee, stated the reasons for the passage of the bill, and his speech throws considerable light upon the construction 6f the statute, particularly upon the construction of that portion of it which re­quired a vote to be taken in the separate houses. I read from the Congressional Globe, Part II, first session, Thirty-ninth Con­gress, 1865-'66, page 3727:

I will say further, that the committee were unanimous in I'egard to this bilL It is a bill the want of whichhasbeen!elt ever since I have been a mem­ber of Congress whenever a contested election has arisen; and such cases have most !requently arisen out of the difflculty of the two houses o! a Legis­lature meeting together. It has always been considered desirable that Con­gress should pass some law on the subject, and I think the Judiciary Com­fuittee, of which I have been a member for the last eight or ten years, in dis­cussing this matter have alwafs agreed that it was desirable that Congress should pass-some law on the subject and avoid those contests that arise from the fact that a factious opposition in one branch of the Legislature or the other sometimes prevents the two houses from meeting together.

Several occasions have passed by and it ha.s remained, until another occa­sion recently arose to ca.ll attention to the subject. Then some member of the Senate, I think the Senator !rom Oregon [Mr. Williams) introduced a resolution instructing the Committee on the Judiciary to inquire into this matt-er, a.nd this blll was prepared in consequence of that resolution which went to the committee. It is impossible to make it conform exactly to the practice which has prevailed in the several States, because the practice has

been unlike in the di1!erent States. In my State we have always elected by joint convention; we never had separate action in each house· but out of deference to the practice ~hich has prevailed, I think in most' ot the New England States, and also m the State of New York of voting in separate houses, it was thought better, as no evil could result f;om that. to adopt that plan for the election of Senators; but in case that !ailed, to provide that the two houses should then come together and make an election.

The public interest requires that each State should be represented in the Senate o! the United States, and it may sometimes happen that the two branches of the Legislature are o! difterent politics and then will not meet together to elect a Senator. We think the public interest is not subserved "!lY leaving a State unrepresented; the intention of the Constitution is that 1t should be represented, and it is for the public good that we should have a ~f~~at will produce uniformity in these elections and secure representa-

The evil to be avoided was the refusal of one house or the other to pass a resolution creating a joint assembly. A joint assembly, though composed of members of the Legislature is no more than if it was composed of men from the street a~y­where unless it is created by some law. The joint assembly he;e.w:as created by no law, by no resolution. No law created thiS JOmt assembly for this purpose. The joint assembly was not created and the law could not operate I claim until they h~ ~ctually complie~ with its terms, or attempted' to comply w1th 1ts terms. If ?-e1ther house wanted to go in, no convention could be held; but if one house voted for Senator and the other house.r~fused to vote, then the law provided that there might be a JOmt assembly to complete the work. But it was never intended to create a joint convention where both houses refused to act. However, I shall come to that later.

Mr. MITCHELL: I ask the Senator if the very question that we are nowdiscussingwaq not decided by the Senate of the Uni­ted States in the case of Gilbert, from Florida?

Mr. STEW ART. No. Mr. MITCHELL. And, furthermore, was it not decided again

on the report made by the Senato1' himself in the case of Flan~ gan and Hamilton and two other contestants from Texas?

Mr. STEWART. No; it was never decided in that case. It was neve; raised. I was upon the committee in both those cases. In the Gilbert case the people organized a State government by forming the constitution, elected a Legislature, and proceeded to c:lect Senators before t~e. act of Congress was passed· rehabili­tatmg the States or adm1ttmg the State on the reconstruction plan. I wish the Senator to pay attention to this point because I want to enlighten him. The main contention in that'case was that the .state, not having been admitted by an act of Congress had no r1ght to elect Senators. That was th3 main contention' but in that case the Legirllature had failed to take a vote in th~ two houses separately.

No objection was made, however, to that on the hearing, be­cause the two houses had passed a resolution to go into a joint convention for that purpose. That action of the two houses cre­ated a joint convention. It was created by the State. Nobody made any point on it, and it was no·t insisted upon that they had not voted separately. The senate was not called upon to pass upon it, and did not.

In the casa of Hamilton, of Texas, that question did not arise because the two houses there voted. The only question thai arose in that case was that the State had not been admitted to its :elations to the Union at the time the electiqn took place. But m both cases the Senate held that the subsequent admission re­lated back and cured all the defects. That is a correct statement of those cases.

Now, I wish to call attention to the law governing the election of the United States Senators in the State of Idaho at the time of that election in December, 1890. The constitution of the State provided that-

Within ten days after the organization oft. he Legislature both houses of the Legislature shall then and there proceed to elect, as p-:-ovided by law two Senators of the United States for the State of Idaho. At ~aid election the two persons who shall receive the majority of an the votes cast by said sena­tors and representatives shall be elected as such United States Senators and shall be so declared by the presiding oftlcer of the said joint session. ' The presiding oftlcers of the senate and house shall issue a certificate to each of said Senators, certifying his election, which certificate shall also be signed by the governor and attested by the secretary of state.

Congress approved of that, and in the twentieth section of the act admitting Idaho Congress provided: . ·

That the Legislature of the said State may elect two Senators o! the United States, as provided by the constitution o! the said State; and the Senators and Representatives of s_aid S tate shall be entitled to seats in Congress, and to all the rights and pnvileges of Senators and Representatives of other States in the Congress of the United States.

That was the law lmder which the two Senators were to be elected. Now, when the two were elected that law was exhausted. There could be no pretext that Congress intended to make that a permanent law for the filling of all vacancies thatshould there­after occur. That can not be claimed.

Then the election of the third Senator necessarily came under the general law. Jt came under this section which is exactly de-scribed here, section 14 of the Revised Statutes: .

The Legislature of each State which is chosen next preceding the exptra-

·I

1892. CONGRESSIONAL RECORD-SENATE. 1389 tion ot the time tor which any Senator was elected to represent such S~te 1n Congress shall, on the second Tuesday after the meeting and organization thereof, t>roceed to eleot a Senator in Congress.

I will consider the point made by the Senator from New Hamp­shire hereafter. I trunk he will find that a two-edged sword. I am going now to answer the position taken by the majority of the committee. The majority of the committee claim that Mr. Dubois was elected under this provision. That is the position. I shall show that there is nothing in it, and if he was not electe.d under this provision he was not elected at all.

Mr. MITCHELL. The committee claims that the fa~ts sur­rounding and connected with the election of Mr. Dubois are of such a character that if an election could take place legally under either one, that is, under the constitution of the State and the enabling act on the one hand or under the Revised Statutes on the other, then his election would be legal , and that is suffi­cient.

Mr. STEW ART. I suppose the Senator means by that that he was a citizen of the United States, having baen a resident nine years, and was over 30 years of age.

Mr. MITCHELL. I mean a great deal more than that, as the Senator will understand.

Mr. STEW ART. There is nothing more than that in it, and I shall show when I get to that that there was nothing surround­ing the facts to show otherwise. If he was elected at all under that law there was no surrounding fact but what I am about to allude to. I am aware that the committee understand the weak­ness of their position and want to fall back on some imaginary cases, but I will examine the pin-hook point of no law applying before I get through. I wish now to confine my consideration to the proposition that the Legislature was not organized until Tues­day, the 9th of Dacember, and that the election of Mr. Dubois, if regular in every other particular, is void because he anticipated the time. The time being anticipated that is sufficient to avoid the election.

If there is any proposition on earth that is certain, it is this. There is not a shadow of a pretext for pretending, in my judg­ment, that that Legislature was organized on Monday. The Legislature did not so regard it; nobody so regarded it; it is an afterthought, one of those attempts to patch up a bad case.

Now we will examine what occurred on Monday first, because the majority report in its statement of facts in the beginning does not state all that occurred. On Monday the persons com­posin~ the senate met. After they had met and before the proc­lamatiOn of the governor was read or anybody knew who were the senators and who were the bystanders, Mr. Gunn moved that M. C. Athey be elected secretary of the senate pm tempore. Re­member that it wasonot a senate at that time. Nobody was ·en­titled to vote. They did not know who were ihe senate; they had not been called or sworn. Mr. Gray got up in the ordinary way to commence proceedings and moved to have somebody as secretary pro tempore.

They called in Mr. Athey. Whether Mr. Athey acted on that day or not does not appear from the journal. After this was done the president then read the proclamation of the governor con­vening the Legislature of the State of Idaho at Boise City the 8th day of December, 1890.

The president of the senate then called the roll of members as certified by the secretary of state, and the following-named gentlemen responded to their names.

It would have baen the duty of the secretary in ordinary cases to call the roll, but this man who had been designated before there was a senate at all did not assume even to call the roll. The president of the senate, who was the lieutenant-governor, called the roll, and so far as the record of the first day is concerned there is nothing but the signature of Mr. Ath~y signed the next day in making up the proceedings to show that he acted as sec­retary.

Then what occurred? Mr. Gray moved that the rules of the legislative council of the fifteenth session be adopted so far as consistent for the regulation of the senate until the report of the committee on rules be adopted, and the motion was carried. The fiftieth rule then adopted required that-

These omcers-That is, officers of the senate-

These omcers shall severally take an oath truly and fai thfully to discharge the duties of their omce.

No oath was administered to Mr. Athey or anyone else on that day. .

Mr. MITCHELL. The oath was administered to all the mem­bers of the senate.

Mr. STEWART. Yes, the oath was administered to the mem-·bers, but not to Mr. Athey. That rule does not apply to mem­bers of the senate, but to the officers of the senate. So he was not sworn in. As far as the record is concerned it does not ap­pear that he acted at all, though they say he did, and it is a~mit-

ted for the sake of the argument that he formed part of that ma-chinery. -

Then a very important resolution was passed after they adopted the rules of the former house requiring. the oath of office to be administered to the officers elected:

Mr. Brigham moved that the president appoint a committee of three on organization to designate and determine the number and order of omces to be filled by the senate.

This is all that occurred on Monday, the day that it is claimed the organization was perfected, except to swear in the members. The members were sworn in, and this was all the proceeding taken-a resolution adopting the rules and a resolution appoint­ing a committee to designate the number and order of the offices to be filled. Then on Tuesday the report came ·in.

Mr. President: We, your committee on organization appointed to desig­nate and determine the number and order of the o1Hces to be filled by the senate, ask leave to report as follows:

" 1st. President pro tempore of the senate. ·• 2d. Secretary of the senate. • ·3d. Assistant secretary of the senate. ·' 4th. Engrossing clerk. ' ·5th. Assistant engrossing clerk. '' 6th. Enrolling clerk. " 7th. Assistant enrolling clerk. " 8th. Two pages. " 10th. Doorkeeper. " 11th . .Janitor. ' ·12th. Chaplain. " Respectfully submitted.

".J. W . BRIGHAM, Ohairman." Then they designated the office of secretary of the senaw to

be filled. Still it is said that they wera organized. Did the senate regard itself as organized? Did it consider the office of secretary was already filled when it appointed a committee to report what offices should b3 filled and the committee reported the office of secretary should be filled? Did it attempt to do anything? Did any legislative body in America ever recognize any business as bemg in order pending its permanent organization? The sen­ate appointed a committee on organization to determine the offi­ces to be filled, and to say that it was then organized, within the judgment of that senate or within the rule of any legislar tive body that ever existed, is too absurd :for argument. It is brazen effrontery to claim it. _

In the organization of the two bodies it is agt·eed by both the majority and the minority of the committee that the two houses are the exclusive judges of their own organization, and that they have a right to say what shall constitute such organization, and what they say is supreme; and that the Senate of the United States can not determine that question for them. The two houses have a right to say what offices they will have. That is admitted; and it ia granted in the constitution of Idaho, to which I have called attention, and it is admitted in this report. I read now from page 3 of the majority report:

The house, therefore, was possessed of the inherent and exclusive power not only of electing its own omcers but also of determining the number and kind of omcers to be elected.

That is the majority report. They were the exclusive judges. Then again on page 16 of the report the majority say:

Inasmuch as each house of the State Legislature has the right to determine as to its own organization, as to the number and kind of organs it shall have to represent its action, record its decrees, and aid 1n the transaction of its business, etc.

This is the majority report. The minority report is equally explicit in ascribing to each house the exclusive right and juris· diction to determine its own organization. The minority report states:

The Constitution of the United States provides that Senators shall be chosen by t.he Legislatures of l>he States, resP.ectively, and grants to Congress the power of regulating the " time " and ' manner" of so choosing them. The act of Congress of .July, 1866, has fixed the time for initiating the proceedings for such choosing as the second Tuesday after the meeting and organization of the Legislature next preceding, etc. Clearlythedutyimposed by.the Con­stitution is upon a lawmaking body; upon that department of the Govern· ment having the legislative function; and when the act speaks of the organ­ization of that body, it must, by every I'easonable intendment, mean that systematized arrangement of constituent and independent parts, or organi· zation of each house, which by the determination of each house shall be ap­propriate and necessary for the discharge ofits legislative !unction.

What stage, or degree, or kind of organization may be appropriate and necessary for this purpose is not for the Senate of the United States to de­cide. That must belong to the two houses, respectively, of the Legislature, and is necessarily exclusive.

There is no doubt about that. Then will anybody say that the senate which met together and appointed a committee on organ­ization and adjourned for that committee to come in and report had decided that it was already organized then? Did they mean to say that they were then organized, or did they mean to say that they appointed a committee to be organized? Is it a con­tradiction of terms to say that the senate determined on the 8th of December that it was organized. Both sides admit that it was in the power of the senate to determine, and it determined as clear as language can make it that it was not organized by providing a committee to perfect an organization.

There is something in this State constitution which I think

1390 CONGRESSIONAL RECORD-SENATE. FEBRUARY 24,

has a further bearing upon the question of organization. Ar­ticle 3, section 9, says:

Each house when assembled shall ehoose its own o:m.cers, jud~ of the elec­tion. qu.aJ.iftcations, and returns o:tits own members, determine J.ts own rules of proceeding, and sit upon its own a.djourmnents; but neither house shall, without the concurrence ot the other, adjourn for more than three days, nor to any other place than that in which it may b~ sitting.

Mr. MITCHELL. I said the 6th of February, but I meant the lOth of .January. I had reference 'tio the 10th of January.

Mr. STEWART. Of course this protest musthave been made long before that time in Idaho. It was tiled here on the lOth 'Of January, and the remonstrance 'States here 'the reasons why Mr. Duboiswasnotelected. Thereare twenty-three who signed this, as reputable men as there are in the State of Idaho or anywhere else. Now what do they say: Then it says in the second clause of the tenth section of this

article: A quorum being in attendance, if either house fail to e:trect an organization P.ftOTEST AGAINST THE ELECTION OF THE RON. ron. T. DUBOIS TO THE

Within the fl::rst four days thereafter, the members ot the house so fai.linJ:1: SENATE OF THE UNI'r.ED STA.TES FOR THE ST.A'l'E OF IDAHG. sha.ll be entitled to no compensation from the end of the said !our days until We, the undersigned, members of the first session of th-e Legislature o:fthe an organiza.tion shall have been e:trected. State of Idaho, respectfully protest against the admission of the Hon. Fred.

What meanmg· and e:ffect would such a provision have if get- ·T. Dubois to a. seat in the Senate of the United States as Senator from the State of Idaho, tor the term beginning on the 4th· d-ay ot March, 1891, on the ting together and appointing a committee on organization wa.s ground that he has not been Legally elected such Senator, and in support understood to be an <>rganization? Of course the constitution thereofwerespectfullyshow;

tth t th h -1..:1 • d be ad f b · d (1) Thatthsfirstsessionof itheLegislatureottheState-ofidahowasoon-mean a ey 'S Ow.u. organ1ze an re Y or iUSl.ness, an veued a.t the capitol of the State at 12 o'clock m. on Monday, the 8th da.y of should not be paid for it if they were fooling away their time. December, 1890, by proclamation of the governor of the State. But stress was laid in that constitution upon a bUBiness <>rganiza- (2) That t.llf senate did not organize on Monday, December 8, 1890, and was t . d th Le · 1 tu ded •th -11 bl a· tch not organized until Tuesday the 9th day of December. 1890, on which da.y IOn, an e giS a reprocee · Wl .w. reasona e ISpa fortheftrsttimeitorga.nizedbytheetectionofa.llitsotncersexceptthepre-the first day to initiate the proceedings for such organization. siding o:tllcer who is designated by the constitution, and on th&t day sent

Mr. VANCE. Who is to judge of that organization? ~~~~Jif~t~et:;e~~~\~~-its organization to the other branch oU.he Legisla.· Mr. STEW ART. Both the majority ·and the minority of the (3) That thereafter, on the 13th da.y of December, J890, a concurrent reso-

committee say that it is the two houses acting separately. The lntion was passed by the senate to the e1fect that the respective houses or the constitution of the State _says so and all the precedents that have Legislature would proceed ou Tu'8Sda.y, the 16th day of December1. ro &l.ect ever been established recognize it. It is one of the inherent at- ' United States Senators, which .resolutiOn was concurred in l:Jy the n.ouse G't

· ~ 1 · 1 · ~.- · h h h hall h h representatives. tr1butes 0.1 eglB at1ve cJ..uuCtions t at t e ouses s ave t e (4) Tha-t on Tnesday, December 16, being the first 'l'uesday a:rter the 'Dr· power to determine when thev are organized and to .say what ganization of the Legislature, as above stated, each house of the Legislature h ll titute h · t'l! Th . •~ afte •t had voted for the election of one United States Senator and adjourned.

13 a. cons . sue organiZa lOll; e sena~, r 1 or- 'Onth. e. nextda.y, Wednesday, December17,1890, thetwohousesmetmjotn-t ganlZed on the second day by electmg these officers, d~lared that assembly, and the journals of each house being read~ it was shown ~at. no it was urganized by the election of those officers. Before that , :pe:son ha.d received a majority of the votes cast m either house, :and the tiine it was not organized and no business was in order. JO~t assemb~ t~en proceeded to vote for one Senator .. and no person re-

M MITCHELL W·u th S to ti ? ce1ving a. maJOrity of the votes cast, the joint assembly a.djou:rned'to meet

r. . 1 e ena r .answer me a ques on. thenextday. Mr. ST-EW ART. Oh, certainly. (5) That the two houses oi the Legislature mettor th~ second time mjomt Mr MITCHELL Could that Leo-il'llature have enacted a law assembly on Thursday, the 18thda.yo!December.1890 a.ndbyresolutio.npro-

. · o- . · ceeded to elect two Senators to fill the existing vacancies for the State 'Of on Monday that would have been a valid law? Idaho, after which the joint assembly immediately proceeded, aga1Ilst 'the

Mr. STEW ART. Certainly it could if it was organized. protestofme~berspresent,whoobjectedtherewbeca.usethejointa.ssembly

M MITCHELL Th th S to ' dmit - had no legal nght so to do 1llltil the second Tuesday after organization of tbe r. . . · en e ena _r a ~-- . Legislature (toelectaSenatorforthetermcommencing on the 4th day 'Of

Mr. STEW ART. No, I do not adnut anythmg of the kind. M.ar<'h, 1890), a.n.d the Ron. Fred T. Dubois was declared elected. Mr. MITCHELL. The Senator'Mmits that the Legislature · Andyourp:rotestantsrespectf~yshowtha-tsaidpretendedelectionwa.shad

was organized sufficiently to enable it to pass laws? before the second Tuesday aft& the organization of the senate. to wit, the . . · 23d da.y of December, 1890. Mr. STEW ART. I do not adnut It. That neither house of the Legislature had voted ror or named any person Mr. MITCHELL. I 'SO understood you. as Senator for said term, as required by ehapter 1 of Title n -of th.e Revised Mr STEW ART 1 do not admit it sir I sav they could have Statutes ot the United States, and the election of a Senator :tor said term,

:. • J • :J beginning March 4, 1891, had never been agreed to or considered favorablY by done 1t. either houseof the Legislature, but was first resolved upon in thejo.intassem·

M:r. MITCHELL. That admission is made, I understand, by bly convened for ~he election ot Senators to fill t~e exi:stiug vacancl.es, and Mr Clagett himself. ~s proceeded with against the protest and obJection .of members of the

M. STEWART If th h d ad d 1 ti th t th Jomta;ssem'bly,onthegroundtha.tsuchelectionattha.ttimewa.snotauthor· r. . ey a m e a ec ara on a ey ized bylaw. were .organized and ready to proceed with business-if they had Your protesta.I?-ts therefore pray that ~e Hon. Fred T~ Dubois be not ad-

m ade a declaration to that effect they could organize on that day mitted to a. seat m the .Senate of the Uruted States as a Senator from the . ' .State of Idaho. if they pleased. But they did not do so. They could have or- Johns. Gray, president pro tempore of the senate; .J.R. DeLam&r, ganired by electing a single officer and then proceeded to busi- ' J . .s. Langrishe, John Hanly, Goo. w. Emery, James F. Cam· ness · eron, A. L. Scofield, Carey D. Porter, Joseph Hawkins, James

· . . . M. Ballentine., Frank Steunenberg, H. Armstrong, H. M. Oasey, Mr. MITCHELL. The question, I subnut, lS not what they .J. Q. Dryden. w. H. Smith, J. c. Martin, E. s . .rewe}.l. Isaac

declared, but what did they actually do? If the;y: did that which Irwin, E. w . .Jo:nes, Stephen Demp.seyJ Green Wh.1.te. Ira s. was .sufficient to ~ustily them in passing a bill that would have Sperry, Wm. Wmg. . been a good iaw if passed, then I insist that they had a right to This was filed here on the lOth of January. There was not elect a United States Senator. much delay about it. Thetwenty-threemenstate that theypro-

Mr. STEWART. Who was to determine when theyhad done tested at the time that Mr. Gray raised this point, a.nd 1twas that which was sufficient? Who was to determine it? The one of the points they tried to urge to prevent them from pass­Legislature. Did the Legislature determine that it had organ- ing a resolution to go into the election of a third Senator. Talk ized? about delay; they have been protesting against it from the be·

Mr. MITCHELL. It did, because it elected a Senator the ginning. It was conceived in a conspiracy and opposed as soon next Tuesday after that. as the ·conspiracy was developed by the resolution on the 18th

Mr. STEWART. Ahl 'There is yourmobagain; thatusurp- day of December, offered by Gunn in the joint convention. ing body, that body that was carrying out the behests of a .com- Mr. MITCHELL .. The Senator will admit, because he desires bination, made that declaration among other faLse declarations, to be fair, I take it, that so far as the journal of that Legislature but the Legislature never determined in 'Separate houses, it is concerned there is nothing in it on that point from beginning neverpretended, thatitwasorganized until Tuesday. Now,then, to end until the 6th day of February. we have- Mr. STEWART. Who had th.e JOurnal?

Mr. MITCHELL. Right there one other word, if it does not Mr. MITCHELL. The Legislature had the journal. disturb the Senator. . Mr. STEW ART. Who made up the journaL

Mr. STEW ART. Nothing disturb.3 me. Mr. MITCHELL. The minority report certifies to the integ· Mr. MITCHELL. I make this statement, that no declaration rity of that journal.

was ever made in that Legislature by any one member of either Mr. STEW ART. Ahl ,Jrouse or by any number of members <>f either house that it was Mr. MITCHELL. Certainly the Senator will not ttack it. JLOt organized on Monday until the 6th day of February, nearly Mr. STEW ART. Because it was not recorded in the journal two months after the election of Mr. Dubois~ . it does not make the fact less that the conspiracy existed and that

Mr. STEW ART. Now the Senator wants to break up my ar- the pr<>tests were signed. Twenty-three men have stated, and gument. I was coming to that, but I will tell you right here. sixteen men have sworn that they did protest, and it was not put

Mr. MITCHELL. It is not a very difficult thing tD do. on the journal. Mr. Reed was clerk of the house. We have the Mr. STEW ART. It will be a difficult thing to do, because I history in the Supreme Court reports of Mr. Reed's .capacity to

am on the right side, and no matter which way it turns <>ut, what falsify journals, if it is necessary to go into that. No, their rea­l say will be true. The Senator said that it was not determined sons for the protest were omitted from the journal, but that does

~til the 6th day of February. Here is a protest filed here on the not chang. e the fact that they protested at the time. th of January and signed by twenty-threemembers of the Legis- The PRESIDING OFFICER {Mr. PLAT~ dn the chair). The

&ture. Senator from Nevada will suspend. The hour of 2 o~loek ha.s

1892. CONGRESSIONAL RECORD-SENATE. 1391 arrived, at which time the unfinished business is usua.ll:y laid be­fore the Senate. But the Chair understands that this lS a priv­ileged question and that it goes on until completed or something else intervenes. Therefore the unfinished business will not be laid -before the Senate at this time, but will keep its place and come up after this matter shall have been disposed of.

Mr. PAD DOCK. That will simply be given a.s a notice to the Senate that that order is made. It is sufficient.

The PRESIDING OFFICER. The Senator from Nevada wiU proceed.

Mr. STEWART. Now the senate on Tuesday, December 9, as I have said, elected its officers and passed the usual resolution and notified the house of its organization. The house met on Monday, the clerk of the former house ·officiated, the members were sworn in, the speaker elected, and most of the officers were elected, and the house then adjourned until the next day. The next day they completed the election of officers. It was on Tues­day that they completed the election of officers and then after such offi~rs were sworn in, and not before, they notified the eenate th t they were organized. After the journal was read on Tuesday a following proceeding took plaoo;

There being no objection, the speaker declared the election or omcers now tnorde-r. .

Mr. Armstrong then nominated Rev. J. H. Barton for chaplain. Mr. Stu­nenberg moved that the election be made by acclamation.

Motion }>re-vailed, and Rev. J. H. Barton was declared duly elected. On motion of Mr. Monroe, the duties of the assistant enrolling clerk were

JD.ade those of journal clerk'until such time as the business o! the house should require the services of an additional clerk.

Then a resolution was adopted to notif,y the senate, a com­mittee was appointed in the usual way to jom a committee of the senate and to notify the governor. Both houses decided that they were organized on Tuesday, and that they were not organ­ized before. They were proceeding 'vith an organization on Monday, but they had not got it completed.

It is said that they could ha. ve legislated on Monday. Of course they could have organized and determined that they had organ­ized, but they did not do so. The question is, when did theyor­ganize? The language of the statute is, "after the organiza­tion," not" after the time that they could organize," but" after they have organized.n It is admitted that the two houses are the absolute and exclusive judges of the time when theyha.veor­ganized, and no business was in order under the ordinary rules of parliamentary procedure until they had organized.

Mr. GEORGE. Mr. President-- . The PRESIDING OFFICER. Does theSenatorfrom Nevada

yield to the Senator from Mississippi? Mr. STEW ART. Certainly. Mr. GEORGE. I have been looking over a. copy of the consti­

tution of Idaho, which contains a conclusive answer to the sug­gestion made by the Senator from Oregon [Mr. MITCHELL] that on Monday they could have passed a law. I will read it. Sec­tion 15 of article 3 provides that-

No law shall be passed except by bill, nor shall any bill be put upon its final passage until the same, Wl~ the amendments thereto, sha~ have been printed for the use of the members; nor shall any bill become a law unless the same shall have been read on three several days in each house previous to the final vote thereon.

That would take six -days, if they had commenced it then. Mr. MITCHELL. That would be the case at any stage of the

session, whether the Legislature was organized or not. That has no bearing on the argument.

Mr. GEORGE. The Senator's contention was that they were able to pass a. law on Monday.

Mr. MITCHELL. Certainly. Mr. GEORGE. The constitution says they could not do so. Mr. MITCHELL. The constitution does not say that they

could not pass a law on Monday. It simply says they could not pass a law until it had been read on three se-veral days.

Mr. PUGH. I will ask the Senator from Mississippi if it would have made any difference; if there had been on Monday a perma­nent organization they would not have had any more power to put a bill through.

Mr. MITCHELL. Not at all. That is the point I make. Mr. STEW ART. I do not give way for a general discussion. Mr. PUGH. On the question of organization it is wholly im-

material. They could not have passed a bill under three days if there had been a permanent organization on Monday in the sen­ate. So that is a wholly immaterial question.

Mr. STEW ART. But as to the question of organization it is absolutely essential that the Legislature shall so determine in some form. Perhaps by going into legislation and passing a bill they determine that fact. If they had gone into legislative busi­ness on Monday with such organization as they had they could so determine that they had organized. But they were in the inidst of organization and had not got through with their organ­ization, and no business was in order until their organization was completed, and they were entitled to no pay until they were or-

ganized. That is all there is about it. They were in process of organization. It is a contradiction of terms to say they were or­ganized when they were organizing; that they had completed their organization when they were organizing.

The committee has undoubtedly been misled in many ways. It has stated that no oath was required. They state in their re­port that no oath was necessary. They had not discovered that an oath was necessary. They had not discovered that the rule had been adopted requiring an oath, and they devote a page to the fact that they dispensed with the oath to Mr. Athey on the ground that no oath was required. That is one of the things showing that they had not made due investigation. Then they occupy several pages of their report to show that Mr. Athey was elected when it was admitted all around that he was elected as much as he could be elected by a body of men who had not been brought together themselves. What occurred was admitted in the beginning, and it is said that Mr. Clagett finally conceded that. He did not make any point on it. What occurred was ad­mitted.

But as to the precedents, the minority report has given us these precedents in a most satisfactory manner. The majority report claims that there are eleven precedents in the House of Repre­sentatives where the House has passed a resolution notifying the Senate that it has organized when it had nothingbut a Speaker. On investigation it is shown that there are none. If the com­mittee had examined it they would have found that there was not acaseof that kind. The elevencasesa.re put into this report and on examination it is found that there were none. On the con-trary-- ·

Mr. MITCHELL. Ha.s the Senator the record? Mr. STEWART. I have the record. I have looked at the

record, and I have it here. Mr. MITCHELL. It is here. Mr. STEW ART. The Senator ought to have looked at it be­

fore he made his report. Mr. MITCHELL. The report is all right, as the Senator will

:find before he gets through. • Mr. STEW ART. I am reading now from some portions of the

minority report because they have it correct. I have looked at these cases myself, and the minority report is correct.

Mr. MITCHELL. What p~o-e does the Senator read from? Mr. STEW ART. I read from page 43. The minority report

states, commencing on page 43: ~

The eleven Congressional precedents ln the house of t•epresentatives cited in the committee's report, }>age 19, are cited to show that in these eleven cases the house of representatives has voted that 1t was o:rga.n.ized and ready to proceed .to business when it had a. permanent presiding o11lcer only, and when it had no regularly chosen and quali.fled recording o.tll.cer.

The language o the majority report is as follows: On not less, therefo-re, than eleven definite occasions has the House of Rep­

resentatives of the United States decided, and ln its decision the Senate and the President have acquiesced, that it is an organized House when a quorum of the Representatives have assembled, taken the oath of omce, and chosen a presiding officer.

Now, the minority goes on to say: The conclusion reached by the committee, that in these eleven houses the

house had no regularly chosen and qualified recording officer, is based upon the fact that after the election o! speaker, and before the election o! the clerk, the house has notified the senate that it was o-rganized and ready to proceed to business, and in many instances has transacted legislative busi­ness during the time intervening between the election o! the speaker anq the election of a clerk.

The alleged precedents are no precedents at all in favo:r of Mr. Dubois, but are precedents or the most conclusi-ve character in favor of contestant, fo:r the reason that since the beginning of the Twenty-fifth Congress (1B39) the House has had a standing rule by which its Clerk and Sergeant-at-Arms. and at a later date its Doorkeeper and Chaplain, when once elected, hold their omces untll their successo-rs are elected and qualified. Prior to 1839 the practice of the House is thus summarized by Mr. Barclay:

"On the 1st of April, 1789, being the first day of a quorum of the House as­sembled under the new Constitution, the House immediately elected a. Clerk by ballot, without a previous order being passed for that purpose, although in the case of a Speaker, who was chosen on the same day, an order was previously adopted. A Clerk has been regularly chosen at the commence­ment of every Co~ess since. The provision for the election of all omcers o! the House by t1tVa 'VOC4 vote was a4opted December 10, 1839." (See Bar• clay's Digest, p.163.)

~rit~d~:~~¥~:Wo~~~~~~~~~fut~~~~n~~~~~0f~~ dis-charge of the duties ot his omce to th~ best ot his knowledge and ability, and Shall be deemed to continue in o:mce until another be appointed. (Constitu­tion, Rules, and Manual, Twenty-fifth Congress, p. 67.)

"A Sergeant-at-Arms shall be appointed to hold his omce during the pleas­ure of the House, whose duty it shall be to attend the House during its sit­tings; to execute the commands of the House from time to time, together with all such powers issued b~ auYJ.ority thereof as shall be directed to him by the Speaker." (See Constitution, Rules, and Manual, Twenty-fifth Con-~~~~ .

These rules were adopted, by specia.t order, by the Twenty-sixth Con~ess (Congressional Globe, voL 6, p. 56), by the Twenty-seventh Congress (Con­gressional Globe, voL 8, p. 4), by the Twenty-eighth Congress (vols. 12 and 13, p. 335}, by the Twenty-ninth Congress (voL 15, pp. 4 and 428), by the Thirtieth Congress (vol. 18, pp. 3 and 49), by the Thirty-first Congress (vol. 21, p. 78), by the Thirty-second Congress (voL 26, p. 10), by the Thirty-third Congress (vol 38, p. 4), by the Thirty-fourth Congress (vol. 38, p. 35), and by the Thirty-llfth Congress (VOL 4, p. 3).

1392 CONGRESSIONAL RECO.RD-SENATE. FEBRUARY 24, _

At the first session of the Thirty-sixth Congress, on March 16, 1860, these old rules were changed to read as follows:

''There shall be electedatthecommencementof each Congress, to continue inofficeuntil theirsuccessorsareappointed, a Clerk, Sergeant-at-Arms, Door­keeper, and Postmaster, each or whom shall take an oath :for the true and f{loith:ful discharge or the duties of his office to the best of his knowledge and ability, and to keep the secrets of the House; and the appointees of the Door­keeper and Postmaster shall be subject to the approva of the Speaker; and in all cases of election by the House of its officers the vote shall be taken viva vo~." (Rule X, Constitution, Rules, and Manual, 1876, p . 163.)

This .Rule X remained the standing rule of the House until the present Rule n was adopted, which rule is as follows:

"There shall be elected by a viva voce vote at the commencement of each Congress to continue in office until their successors are chosen and qualified, a Clerk, a Sergeant-at-Arms, Doorkeeper, Postmaster, and Chaplain, each of whom shall take an oath to support the Constitution of the United States, for the true and faithful discharge of their duties to the best of their knowl­edge and ability, and to keep the secrets of the House, and each shall appoint all of the employ~s of his department~rovided for by law." (Rule n , Consti­tution, Manual, and Digest, Fifty-second Congress.)

It thus appears that during the entire period covered by the eleven Con­gressional precedents referred to by the committee the Clerk and Sergeant-at­Arms of the House of Representatives, after being once chosen and qualified, continued in office as the regular officers of the House until their successors were chosen and qualified. It results, therefore, that in every instance referred to by the committee to

show that the House had no Clerk when it notified the Senate that it was or­ganized after the election of the S:pea.ker is incorrect, because in every case the Clerk elected at the last preceding Congress was in office, holding over under the rules of the House.

They adopted these rules. They adopted these rules and changed them from time to time, continuing the old officers.

Mr. MITCHELL. Right there I wish to ask the Senator a question. The Senator denies the statement in the majority re­port, which says that there were eleven precedents of a certain character? The Senator denies that?

Mr. STEWART. Yes. Mr. MITCHELL. He says that is an incorrect statement? Mr. STEW ART. I do. Mr. MITCHELL. Now he seeks to avoid it how? Mr. STEW ART. By the fact that they had officers then. Mr. MITCHELL. By the fact that some House of Represent-

atives had adopted a rule, which was continued in force from time to ti.llle, by which the officers elected by the House of Represent­atives should hold their offices until their suc~essors were elected and qualified.

Mr. STEWART. Yes. Mr. MITCHELL. Now, does the Senator pretend to claim

here as a constitutional lawyer, in view of the statement in the Constitution of the United Sta~s itself, that one House of Rep­resentatives can elect officers who will be the officers of the other House? Is it not a fact that they are only continued by virtue of the action of the new House, by virtue of the recognition of the new House? The rule the Senator talks about, in order to avoid the statement of the committee, is no more than so much waste paper in so far as the claim is made here that one House of Rep­resentatives can elect officers that will hold their office by virtue of that election in another and a new House of Representatives, and without an acquiescence or recognition from the other and the new House.

Mr. STEWART. Are you through? Mr. MITCHELL. Yes, sir. Mr. STEWART. Therehasbeenastanding rule all this time

that these officers should continue in office. It has been done , by common consent, but they have been treated as permanent officers.

Mr. MITCHELL. But is it not by the consent of the new House as far as that is concerned?

Mr. STEWART. Yes; they cankeepthemrightalongasper­manent officers; but if they werenotconsideredaspermanentoffi­cers no business would be in order according to the ruling of the House, and one of the precedents cited here shows that most conclusively.

Mr. MITCHELL. Is there anything- to show that the new House did recognize them as their officers?

Mr. STEW ART. Certainly. Mr. MITCHELL. .What? Mr. STEWART. · Theywentondoingbusiness. That was the

recognition of the House. Some of them went on for a consider­able time before there was an election. That has been the prac­tice. To show how the House views the necessity of having a permanent clerk, one who is elected, we have a case here which decides that questionand covers the whole business. A case oc­curred in the House of Representatives which puts an end to the controversy and should have been conclusive on the majority of the committee. The House of Representatives decided Aprill6, 1850-and I want to PJlt in my remarks this action of the House:

HOUSE OF REPRESENTATIVES, T uesday, ..4.p?'il16, 1850. The Syea.ker called the House to order at 12 o'clock. One Of the assistants of the late Clerk of the House, Mr. J. C. Walker, pro­

ceeded to read the Journal of yesterday. Mr. Hall interposed and said that he had risen to inquire by what authority

a.v person prepared the Journal here, under what authority the individual now at the desk was reading t.he Journal. The House had had:a Doorkeeper

and a Postmaster foisted upon it and he, for one, was not willing that a Clerk should be put upon the House in the same way. He objected to the Journal being read until the House-had authorized some individual to read it.

The SPE.AKER. The Chair will state to the House that t.be Journal has been pr~>pared as ..usual under the direction of the Speaker. The individual at the desk, who was reading the Journal, was one of the subordinate o:lilcers of the late Clerk of the House of Representatives. The positions occupied by the~e officers previous to the death of the Clerk are still, in the judgment of the Chair, occupied by them. They are not authorized, however, to discharge the duties or Clerk. In the opinion of the Chair until a Clerk shall have been elected the House is not organized and no business can be transacted un­til an election shall have taken place. But this state of things does not prevent the preparation or thereadingof the Journal. The Journal has been regularly read even before the election of the Speaker in the original organi­zation of the House, and the Chair is not able to perceive any objection against the reading. •

Mr. Hall said he wished to remark that he considered the present state of things very di.IJerent from that which existed when the House was organized. Under the rule of the House the .Clerk of each Congress .held over until his successor was elected. It the gentleman who read the Journal did so merely at the di8cretion of the House, and not as clerk, he (Mr. Hall) had no ob­jection to it. But he widerstood that the gentleman was acting a.s Clerk.

The SPEAKER. The Chair ha.s stated that no person was authorized to dis-charge the duties of Clerk. .

The Journal was then read and approved. Mr. Harris of Illinois rose and moved that the House proceed to t he elec-

tion of a Clerk. · Mr. Brown of Mississipp. i moved to amend the motion by adding after

the word " Clerk" the words "and Doorkeeper." The SPEAKER. In the opinion of the Chair the amendment is not in order. Mr. BROWN. Then I offer the following resolut.ion: The resolution was read, as follows: r

" Resolved, That the order heretofore passed by the House postponing the election of Doorkeeper be, and the same is hereby, rescinded; and that the House of Representatives proceed to the election of Clerk and Doorkeeper. "

The resolution having been read, The SPEAKER. In the opinion of the Chair no resolution, no business is in

order until a Clerk shall have been elected, and the House can take action upon no subject whatever until the election of a Clerk, that being necessary to the organization o:t the House.

Mr. BROWN. I suppose some motion is necessarily in order? . The SPEAKER. No motion is in order except the motion made by the gen­

tleman from Illinois [Mr. Harris) that the House proceed to the election of a Clerk. .

Mr. Kaufman rose to inquire whether the motion of the gentleman from Illinois [Mr. Harris] was debatable; because, if it was so, he had -risen tor the purpdse of moving the previous question. •

The SPEAKER. The Chair does not think that the motion to go into the elec­tion of a Clerk is debatable. If it is so, the debate must be confined within very narrow limits. But the Chair thinks that the question is not debatable at all. ti~· KAUFMAN. Then it is uni).ecessary for me to move the previous ques-

Mr. BROWN. That I may have the sense of the House on that question, I appeal from the decision of the Chair, and I would like to submit a. remark.

The SPEAKER. The Chair has ruled that the resolution of the gentleman from Mississippi [Mr. Brown] is out of order, upon the ground that the House is not organized until a Clerk shall have been elected, and that no business is in order until the House shall have been organized by the election of a Clerk. From this decision the gentleman from Mississippi appeals. And the ques­tion is-

"Shall the decision of the CMir stand as the judgment of the House?" And the question thereon wa.s taken and decided in the affirmative without

a division. So the judgment was affirmed. The question then recurred and was taken on the motion ot the gentleman

ft•om Illinois [Mr. IJa.rris], that the House do now proce~ to the election of a Clerk; and it was decided in the affirmative without a division.

So the motion was agreed to. And thereup<>n the House proceeded to the election vive voce of a. Clerk.-Congressional Globe, volume 21, Part 1, 1849-'50, pages 740. 741.

Mr. MITCHELL. What does the Senator claim that p~·oves? What application does he make of it?

Mr. STEW ART. I do not suppose it can prove anything to the Senator from Oregon, but I claim it proves that the House decided that it was not organized without a Clerk, and that it could not be organized without a Clerk, and it drew the distinc­tion between the case where there was a vacancy and where the officers held over. It was decided in that case that it was differ­ent from the case where the officers held over under a rule-, be­cause the rule made them permanent officers.

Mr. MITCHELL. That there may be no misunderstanding about this matter, I ask if the Senator claims that in the eleven cases cited in the majority report there had been a Clerk elected

·by that House? . Mr. STEW ART. No, the Clerk held over under the rule.

The Clerks were permanent officers. In the very case here cited they had no Clerk, because the Clerk died during the session. ln this very case the election of Doorkeeper had been postponed, and the Doorkeeper in the last preceding House still held his office, all the officers might have continued permanently; they were regarded a-s permanent officers, and that is the only basis on which there was a valid organization.

Mr. MITCHELL. In each of those cases is it not a fact that that same House elected another Clerk afterwards?

Mr. STEWART. They did elect other Clerks sometimes. Mr. VANCE. And part of the time they reelected the same

Clerk. Mr. STEW ART. And sometimes they postponed it and did

not alec~ at all, but let the old officers hold over, showing by their action that they regarded them as permanent officers until their successors were elected. In fact, that is the way a.ll the officers hold, until their successors are elected.

1892. CONGRESSIONAL RECOR.D-· SENATE. -1393 And now, what is a little tougher than this, is the repo~t of

the committee on the precedents of the Senate. The committee say as to Senatoria~ precedents:

The Senate has at dilferent times for periods aggregating thirty-two days transacted its ordinary business with the offl.ce of the Secretary vacant.

I controvert that as a fact, but that is the precise language of :Mr. Paine's brief. The first case to which the committee refer as to proceedingsthat?ccurred i.n.theSenatei submit is a pr_ece­dent against the committee's position, because the Senate decided that a permanent secretary was necessary. This js one of the cases where the committee allege the Senate proceeded to do business without a Secretary. ·

The record is as follows: Re&olved, As the former Secretary of the Senate has departed this life, that

the Chief Clerk do act as the Secretary thereof until one shall be appointed. And thereupon such Clerk was regularly sworn in as the Secretary of the

Senate. (Senate Journal, 1814, vol. 5, p. 523,)

Could the Senate act without a Secretary? Certainly not. It elected the Chief Clerk and swore him in as Secretary and then proceeded. The Senate and the House had permanent officers, and they found it absolutely necessary in order to be organized to have permanent officers, at least a Speaker of the House and Pres­ident of the Senate and aClerkor Secretary of each body. Those are the Congressional precedents. That having been the uniform practice of the two Houses of Congress, it is fair to presume that Congress in passing this act had reference to the general parlia­mentary usages of the country, not only in Congress' 'but in the several States, and that the body itself must be the judge of its own organization and must have reached the point ready for business, and so declare, either by resolution or its conduc~ of legislative business and not be merely in process of reachmg that point. That was universally understood.

The minority have been industrious, and they have examined the journals of the various Legislatures to find out what has been the universal practice. I have the collection here of the views of the minority; and it is interesting to understand what they found by examining all th'e journals that are accessible here. They lay down this as incontrovertible in regard to that:

In no case has either branch of any State Legislature ever notified the other branch that it was organized when it had a temporary organization only, or was permanently organized in part only., or until it had completed its per­manent organization by the election and qualification in all cases of its per­manent presiding and recording offl.cers, at least, and, in most cases, of all the om.cers which it deemed necessary to elect.

This is the universal practice that one House has never notified the other by the passage of a resolution that it was organized until it had a permanent organization, nor until then transa-cted any legislative business, not even in the two Iowa cases in 1870 and 1872, of which the majority makes such great account in their report.

' Continuing the minority report: And no case where such house ever t1·ansacted any legislative business

until after such permanent organization.- In three cases, in Pennsylvania, Maryland, and Colorado Territory, respectively, attempts were made to do business prior to the permanent-organization, and in each case:it was decideu t.hat no business other than the permanent organization was in order until such permanent organization was completed. These three cases appear at the beginning of the digest.

The !ollowfug is the list of States the proceedings of whose legislative or­ganization (since 1866) are embraced in the digest: Massachusetts, Ken­tucky, California, Virginia, Maryland, Pennsylvania, Michigan, New York, Minnesota., Vermont, 'Oregon, Alabama, Colorado, Connecticut, New Hamp­shire, Delaware Indiana, lllinois, Missouri, and Maine.

Exclusive of the six new States recently admitted and which have no his­tory bearing upon this question, there are thirty-eight States, the legislative proceedings of twenty of which are contained in the digest. These are the only States whose journals have been e.xamined in this connection. Where the journals of a majority of the thirty-eight older States show a uniform prac­tice in the organization of their legislative houses, to treat the permanent as the only organization, and the so-called temporary organization as only a pre­liminary step in such real organization, it is fair to presume that the journals of the remaining eighteen would if examined show the same practice.

All the journals are not in the 'Library and could not be exam­ined. Taking up the case of Pennsylvania, where one house of the Legislature attempted to do business in the condition that the Idaho Legislature was on Monday, we find:

PENNSYL V .ANIA. TUESDAY, January 5, 1875.

Met Tuesday, January 5, and were called to order by the speaker. * * * A motion was made by Mr. Rutan, that the clerk proceed to open and read

the returns as presented. Which was agreed to. * * * When the returns of the Thirtieth district were read the speaker laid ·be­

fore the senate the following communication, protesting against the swear­ing in of the person returned as elected from said district, accompanied with affidavits to sustain the same. ·

(Here the communication was read.) Whereupon a motion was made by Mr. Strang that said papers, together

with the credentials of the said John P. Colihan, be referred to a special com­mittee of five, etc. * * *

On the question; Will the senate agree to the motion? Mr. Wallace sub­mitt-ed the point of order that the certificate of election of Mr. Colihan hav­ing been received and read he was entitled to be sworn in as senator, and that it was not in order to proceed with any other business until the senat-ors were sworn.

The speaker ruled the point of order noti'Well taken.

XXIII-88

Whereupon an appeal was taken from the decision of the chah·. The speaker decided that the senate being now only partially organized

and engaged in the process of organization an appeal can not be enter tained at this stage of the proceedings. (See page 9, Senate Journal, 1875.)

MARYLAND.

House. On Thursday. January 8 (the speaker p1·o tempore having been chosen on

the 7th), the following occurred: Mr. Gill moved that the house do now proceed to the election of speaker,

which was decided in the affl.rma.tive. Mr. Lane nominated Hon. Jesse K. Hines, of Kent; Mr. Duer nominated

Hon. John A. Koons, of Frederick. Mr. Seth moved to submit certain papers for the consideration of the house. The speaker decided that all motions were out of order until the house was

duly and pronerly organized. (See page 6, H. Jour., Md., 1874.) Whereupon an appeal was taken fron the decision of the chah·, aud the

chair was sustained, and the house immediately proceeded to duly and pl·op­erly organize itself by the election and qualification of its permanent speaker and chief clerk, and immediately thereafter notified the senate that it had organized by the election of those offl.cers.

WEDNESDAY, December 12, 1866. Part of the proceedings of the council of the Territory of Colorado. The

temporary offl.cers having been chosen on December 3, 1866. l'3ee Council Journal, page 3.)

Mr. Douglass chosen president . * "' * Message from the house of repre-sentatives. .

Mr. De Mary objected to the reception of the message on the ground that the council was not organized.

The message was not received. ·

They have gone through all these cases since the passage of the act of 1866, and there can not be found a case where any Leg­islature of any State has attempted to do business on a tempo­rary organization.

Very much has been said about the Iowa case, but undoubtedly there was a mistake from the beginning. They elected on two occasions, dating from the temporary organization. Afterwards, in five different cases, where they elected bafore the organiza­tion, they elected afterwards the same person, so as to meet the difficulty; and finally, at the last election, they waited a long time until they had a permanent organization, and then waited until the second Tuesday, and fell in line with all the States.

So that we have the concurrence of all the States of the Union that by their universal practice the time to elect Senators shall date from the end of the permanent organization. There is no exception to this rule.

Mr. MITCHELL. Will the Senator at that point allow me to read a few lines as to what the Legislature of Iowa resolved on that subject.

Mr. STEWART. I know what they did. Mr. MITCHELL. I do not know whether you do or not. This

is the resolution they adopted: Be it 1·esolved by the senate (the house concu?'ring), That our Senators and

Representatives in Congress be, and they are hereby, requested to introduce and urge the adoption of an amendment to said section 14, so that the elec­tion of United States Senators shall occur un the second Tuesday after the permanent organization of the two houses of the Legislature.

Mr. STEW ART. That was the law before. Mr. MITCHELL. It shows at least that the Legislature of

Iowa for a good many years was laboring under the impression that the law as it stood provided for an election after what is­known as a temporary organization.

Mr. STEWART. Then all you have here to hang your catse on is the precedent of a mistake made by the Legislature of Iowa, which as soon as it was called to their attention, they corrected both times, and finally abandoned the temporary organization as the time from which to date, and they concurred in the practice of the other States and do so now, because they committed an error which they admitted was wrong and which they had over­ruled. That is your precedent, and it is the only one you have got in all the States.

Mr. MITCHELL. As a matter of course, it was safer in view of the question about it to have the election take place after the permanent organization.

Mr. STEWART. I have no doubt it was safer to follow the law.

Mr. MITCHELL. Itdoesnotfollowfrom that that anelection could not have taken place after a temporary organization.

Mr. STEW ART. Thenitdoesnotfollowbeeause all the States do it, it does not follow because both Houses of Congress do it, it does not follow because the language so commands it, that the second Tuesday after the permanent organization is the proper time. Upon what premises can vou put it?

Mr. MI'l'CHELL. The s~atute says so. Mr. STEW ART. The statute does not say so. These are the

facts. It does not follow because the Legislature had not or­ganized that it might not have organized. The senate of IdahQ passed a resolution to go into an organization, appointed a com­mittee to determine the offices to be filled , and adjourned. · They had the power to determine that they were organized and both houses determined they were organized on Tuesday, the 9th day of December, 1890. They passed their resolutions, and did not attempt to do any other business. They were pursuing the

1394 CONGRESSIONAL RECORD-SENATE. FEBRUARY 24,

ordinary course, and to give any other construction and say these bodies were organized when they said th~y were not, is to violate the common meaning of language, to violate the common sense of mankind for the purpose ofcarrying out a scheme agreed upon that could not brook delay. It is difficult to argue so plain a proposition.

They did not determine they were organized on Monday, but they did determine they were organized on Tuesday.

Now I will proceed to call attention to what I denominate the pin-point of the Senator from NewHampshire [Mr. CHANDLER], because it is so small that it is difficult to observe it with the naked eye. Iti.s the point that the committee still want to fall back upon. It is this: That there was no law applying to the election of a third Senator in Idaho; that the act of 1866 does not apply, although as I read the act it covers the exact case. But suppose that act does not apply, in what position is the-case? If · that act does notB>pply, what act does? ..-Ifi the first place, there never was a resolution passed by either house of the Legislature to go into joint convention. I call the attention of the Senator from New Hampshire to the language of the resolution that was passed. He says there is no law applying to the electio~ and consequently the State had the right to elect. This resolution reads as follows:

That the senate and house of representatives proceed to elect, as provided by law, United States Senators at; t;he hour of 12 o'clock m .. .on Tuesday, De­cember 16, 1890.

That appears in the senate journal, page 25. That was the concurrent resolution concerning this election, that they would proceed to elect as provided by law. Now, if there was no law providing for it at all, if there was no law applicable to it, no Stat~ law, how did they get their joint convention? By what authority did they get a joint convention for that purpose?

Mr. CHANDLER. Does the Senator want an answer? Mr. STEW ART. I can runderstand how you get a joint con­

vention to elect two Senators, because the constitution provides that they shall be elected according to law, and so far as not modi­fied the law of the United States would apply. I should like to have anybody answer how they can get into joint convention in any other way if the law does not apply? If the law says two Senators Bhall be elected, by what authority was that third Sen­ator there, what business had he there? There had been no resolution. Formerly it required some action of the two houses to get into joint convention, and this law was paased because one or the other house would refuse to go into convention. Here we have a genera'lmeeting, neithel' houseaskingforitatall, and if they did not get there in pursuance of Congressional law, how did they get there? What kind of a body was that? Mr~ CHANDLER. Mr. President1 I think the election was

good nnder the .statute. They said 'We will proceed to elect according to law," and I think it was a good election under the statute, as the majority of the com.Dlittee think, but I do not think the statute applied. I think they conformed to the law needlessly, and having elected two Senators, then 54 members of the Legislature, being the whole number of the members of the Legislature, proceeded to vote for Senator. They were in joint convention. It did not make any difference, if the Senator will allow ;me, how they got there. 'They were there. They met there at that time for the purpose -of electing a Senator, the whole of them. They had elected two, and then they proceeded to elect, as they had a right to do, the successor of vne of them. It is all YeJ.'Y simple to me.

The Senator asks how could the Legislature get into joint con­vention lawfully? They were all there and they were all there to elect a Senator and they all participated in it. I do not see for my part how any body can doubt that that was a good election of a United Stat~s Senator when 32 men voted one way and 22 voted the other, when we have already admitted the Senator from Florida [Mr. CALL], who got 51 out of 100, and the others were all gone.

Mr. STEWART. The Senator is perfectly oblivious to the fact that the joint convention, as it appears to me, is not a legis~ lative body. A joint convention is not a Legislature. It is created by law.

Mr. CHANDLER. Not at all. I had the honor of showing to the Senate in the debate on the Florida case thatLegislatures had acted as joint bodies from the foundation of the Government~ for a hundred years, and that it is almost the universal method of State Legislatures making elections 'to meet together and do it, every man the equal of every other man, and I am not oblivious to any law.

Mr. STEW ART. The Senator is perfectly oblivious to the main question.

Mr. CHANDLER. I am willing the Senator should state that I am oblivious to anything 1 am oblivious to.

Mr. STEWART. The Senatorisoblivioustothelaw. I have the floor.

The PRESIDING OFFICER (Mr. PLATT in the chair). The Senator fromNevadaisentitled to the floor and declines to yield.

Mr.OHANDLER. DoestheSenatordeclinetobeinterrupted? Mr. STEW ART. I decline to be interrupted until I have a

chance to say something on this point. Mr. CHANDLER. Will the Senator allow me to say one word

before I sit down? Mr. STEW ART. If you do not w: nt to make a speech. Mr. CHANDLER. I will simply ay that nG one interrupts

other Senators more than the Senator from Nevada. Mr. STEW ART. That is a mistake. Mr. CHANDLER. And I only interrupted the Senator be·

cause he asked a question which I supposed he wanted an answer to.

Mr. STEW ART. No; I was replying to what the Senator said. showing he did not understand what I wa trying to exp plain to him, and he interrupted me and went right on talking. I was saying that he had failed to recognize the necessity of hav­ing some law to get a joint convention, that if the ReviBed Stat­utes of the United States did not apply to the election of this third Senator, then by what authority were they there together? They were not togethe-r by the authority of the two houses of the Leg­islature, because n_o r esolution had been passed to get them to~ gather. By what a11thodty were they there? It was because one or the other house might refuse to create a joint convention, which had to be created by law, 'by the action of the two houses separately, because one or the other of the houses might fail to do it. That is the reason hy this law was passed, and they had gone on with that trouble for .seventy-five years before it was passed.

The Senator from New Hampshire tells ustha.tm.embersof the Legislature of the State of ld.aho had a right to get together without being authorized to do so by the separate action of the two houses, which would have made a joint convention. There is no other law that .applies if the law of Congress does not apply. He says the law of Congress does not .apply,-but still they could get together without .any authority of law.. I say if the law of Congress did ,not .apply to the election of Mr. Dubois in filling that vacancy, then there is no action taken by any body author­ized to act, because they did not resolve to go into joint conven­tion at all. That is just the size of the point they have to fall bac~ upon, and ridiculous as this point is, it is ~rfectly palpable thafthere could be no election at all in the jomt convention un­less the autho1·ity be derived !rom the act of Congress. The Sen­ator who made the report of the committee falls back upon that just a-s a drowing man catches at a straw, and whataflimsystraw it is that a drowning man will catch at!

But I undet·take to say that there was another veTy e ential direction in this law Tiolated which was not violated in the Iowa case, and which was never violated in fact, although the case in Florida was where the two houses resolved to go into joint convention and no objection was made on that account. In all other instances there have been attempts to elect in the houses Separately, in compliance with the law, and that is the universal construction of the law, and I undertake to say that the houses can not go into joint convention by virtue of this law without fol­lowing the law; that they have no right to be there except by following the law. ~tis the law as to the time when they may be in joint convention? The omission of this preliminary to make an attempt in the two houses was a signiftcant thing, and I believe is conclusive and should be held conclusive. Sec­tion 15, Revised Statutes; SEa. 15. Sucheleetdonshall be-conducted in the following manner: Ea.eh house

shall openly, 'by a "Viva voce vote o! each member pre ent, name one person for Senator in Congress from such State, ana. the name of the person so voted for who receives a majority of the whole number of votes cast in each hoUBe .Rhall be entered on the journal of that house by the clerk or seeretary thereof; or, if either house fails to give such ma.jority to either lltlrson on tha.li day, the fact shall be entered on the journal. At 12 o'clock meridian of the day following that on which proceedings are required to take t>lace as afore aid, the members of the two houses ahall conven in joint as emb1y, and the j ourna.l of each house shall then be read, and if the sa.m.e person ha.s received a majority of all the votes in each house, he l:lhall be declared duly elected Senator.

That is a simple declaration. They merely got together, with­out any legislative function, to declare the result. They are brought together for that purpose, and when they may vote to elect is determined in the following clause:

But if the same person has not received a. majority of the vote in each house. or if either house has fa.1led t.o take proceedings as required by this ·ection, the joint assembly shall then proceed to ch,oose, by a. vtva voce vote

of each member present, a. person for Senator, and the per on who receives the majority of all the votes of thejointassembly-.amajorityof all the mem· bers elected t;o both houses being present and voting-shall be declared duly elected.

The two cases in which the Legislature may have .a joint con­vention for the purpose of electing are specifically named. One is where they voted in the two houses separately and no one had received a majority of the combined vote and had been elected; the other is where either one or the other of the houses fails to

1892. CONGRESSIONAL RECORD-SENATE. 1395 elect fails to take action. Then they may come together, but · lutions, or l:;l.ad·taken the initiative proceedings, to elect the third the c'onvention must be inaugurated by one or the other house. Senator, because they voted to fill the existing vacancies. This

It was attempted the other day to change its meaning, and to same Senator Gunn, who offered the resolution on the 16th as to say that "either" meant" both." That, however, was not the the time they were to vote, moved that the senate do now pro­difficulty that existed, because always one house or the other ceed to elect a second United States Senator to fill the existing would want to go into an election, but i! either failed then there vacancy after they had voted for one and did not fill it. Then might be a joint convention. It would be idle to provide for a they adjourned. They were votingto electUnited States Senators joint convention if both refused, because then they would not to fill existing vacancies. That is what they were doing, and no~ elect in a joint convention. That case was never dreamed of or body ever dreamed that they were doiD;g anything else. They provided for. If both refused to go in and take actjon, they could were voting in the separate houses to fill those vacancies. The not be compelled to elect a Senator; but if one wanted to elect whole thing was inaugurated by the following- resolution: sprung and the other did not, then their proceeding would be inaugu- while they were in joint meeting for another purpose: rated. Resolved by the joint assembly of the senate and house of representatives of the

Mr. MITCHELL. Allow me to test the soundness of the Sen- Legislature of the State Qf Idaho, That we proceed to elect two United States Senators to fill vacanCles, and t.hat after such elections we imm.ediately pro­

a tor's argument. The Senator concedes that that Legislature, ce~o elect one United States Senator to fill v11cancy occurring March the which met in joint conveutiqn had the right to elect two Sen- 4th, 1891.

ators? This joint convention, when it. was together, providing it was Mr. STEW ART. Yes. together under the law, had a specific duty to perform, viz, to Mr. MITCHELL. Now, suppose when the vote was taken in complete the election previously inaugurated in the two houses,

the separate houses on the 16th, instea-d of voting for two, they not to resolve itself into a legislative body and declare that they had simply cast one vote for a Senator. Had they or had they would do another thing, viz, elect a United States Senator to not the right in the joint convention the next day or two days fill another vacancy which was not an existing vacancy at all. afterwards, the 18th, to elect two Senators, although they had So that by no fa1r construction of language did they go into only voted for one in the separate houses? that joint co11vention for any purpose except to :fill existing

Mr. STEWART. I do not know. There is some doubt about vacancies, and, as a matter of fact, they had only voted for one that. Senator, and really they had only a right to fill that one vacancy.

Mr. MITCHELL. I think that tests the Senator's argument. They should have voted again in the separate houses if they Mr. STEWART. Is it to test the argument? wished to follo·w· the law. But the idea that they voted. for this Mr. MITCHELL. Yes. third Senator in separate houses is not true. The eleeting of Mr. STEW ART. My argument is on the statute. I am say- Senators is a separate act. It requires a separate vote. to elect a

i.B~ that the statute is not merely directory. Your argument is Senator for a particular term; and it cannot be said, because they this: That notwithstanding Congress has passed a law, having voted for one Senator to fill an existing vacancy, that they com­the authority to do so, requiring that the house3 shall meet sep- plied with the law in voting in separate houses for a Senator, arately and providing for a joint convention in case of either of which the law expressly requires.. them failing to act, therefore it means they shall have a joint This statute has no application at all, and is entirely ignored convention when they both fail to act. I say that is not the law. by the committee. The committee do not pretend to say that The law is plain, that a joint convention is only created in case tbe Leo-islature declared itself organized on Monday. They do of necessity, and that necessity never exists, and is never pre- not pr:tend to say that it or any other legislative body ever did eumed to exist, except in the case named, and the case named is a legislative act under such circumstances; but still they say the where one or the other house refuses to go into joint convention. Legislature might have been organized on Monday and might

Mr. MITCHELL. The Senator is getting away from the have resolved to do a legislative act, and therefore, contrary to point that I wished to hold him to. the fact, they will hold that the Legislature didorganizeanddid

Mr. STEW ART. You can not hold me to a point that does do legislative business within the meaning of the law, because not exist. they might have done it, when they did directly the opposite.

Mr. MITCHELL. The Senator will admit that the two houses That is plainly the position of the committee~ and there can be did meet separatel;y on the 16th? · question about it. .

Mr. STEW ART. I doubt whether they had a right to so I do not know whether Senators have investigated this case meet. and made up their minds or not: This , however, I may say:

Mr. MITCHELL. And they cast on that day a vote for Sena- That if Mr. Dubois retains his seat in the Senate he is elected by tors. The argument of the committee is, having done that~ the the Senate of the United St&tes and not by the Legislature of condition precedent required by the law was performed, and . Idaho. The Legislature of Idaho have expressed themselves in whethertherewasoneortwoorthreeorfourSenators to be elected most unequivocal language on this subject. On the 9-th of Feb­by that Legislature, having voted for one Senator the condition ruary, 1891, the following concurrent resolution was passed by was performed, and then it was their duty to go into joint con- the two houses: vention on the next day and elect as many Senators as it was the Whereas, the present session of the Legislature was organized on Tnes-duty of that Legislature to elect at that session. That is pre- day, December 9, 1890, etc. cisely the position of the committee. It seems to me that here was a legislative declaration, and it

Mr. STEW ART. That is, the position of the committee is, is the first one since the Tuesday when they passed the various that there having been a law passed in pursuance of the consti- resolutions declaring that they were organized on that day. It tutional provision, that two Senators might be elected within is. the only one by the Legislature. This pretendedjointassem­tendays, they thengoinand voteforoneSenator. Then they may bly did not pass any resolution to the effect that the Legislature elect all the. Senators and fill all the vacancies that may occur was organized on Tuesday. They went on and elected without thereafter. Thatisthepositionof thecommittee. Thatisabout passing any resolution in the two houses. The Legislature ol in keeping with other positions of the committee. Idaho never declared that they were organized on Monday. On

The position of the committee is that the statute is entirely the contrary, each house of the Legislature on Tuesday, Decem­directory, that because the Legislature voted for one of the two ber 9,. passed a resolution that it was then organized and ready Senators to be elected within the first ten days, therefore they for business. On Monday they wera engaged in the business of can elect all the Senators who will have to be elected from that organization. State during the whole session. The whole proceeding shows The only argument in favor of the idea that the Legislature that they had reference exclusively to the election of those two considered they were organized on Monday is the fact that they Senators. Nobody ever dreamed OJ.' suggested that they would do elected Mr. Dubois before the time, but they did not in the res­anything else. On the contrary, twenty-eight mtm swear that it olution that I read proposing to elect a third Senator, recite the was understood when these resolutions passed that they applied to fact that they were organized on Tuesday. They did not say any­two Senators, and nobody suggested the contrary. It has been thing about that. But when the matter was called to the atten­invented by the committee. You never denied thefactthatthat tion of the senate and thehouseandtheyexaminedtheirrecords, was the understand.ing when they went into joint convention, they knew what they had done, and they passed a solemn resolu­and to say because they voted for one Senator that that means tion by both houses to this effect: voting separately for all the Senators is ridiculous. Anything Wh~reasthe present session of the Legislature was organized on Tuesday, standing in the way of this combination had to move, and if they December 9, 1890; and could not find it in the record the committee invents something Whereas the State constitution and the admission act require that two far-fetched and never thought of. Let us look at these records · United States Senators should be elected within ten days afterthe-organiza·

· ht Th' · th J. t' tion of the Legislature; and and see whether they are r1g . 1S IS e reso u wn: Whereas, on Tuesday, the 16th day of December, 1890, the Legislature1

pur-That the senate and house of representatives proceed to elect, as pro- snant to the requirements of the cons1litution and the admission act, voted

vlded by law, United States Senators at the hour of 12 o'clock m. on Tues- for a United States Senator, in the two houses acting separately, and there-day December 16 1890 after, as provided by law, m.et on Decem be? 17, in joint assembly, and vot.ed

' ' · · for a United States Senator, and thereafter, on December 18, 1890. again met It is now claimed that the two houses saparately passed reso- in j(}int assembly, and within ten days after its organization, elected, in the

,

..

. '·

'

'

I ~

1396 CONGRESSIONAL RECORD-SENATE. FEBRUARY 24,

manner provided by law. the Hons. GEORGE L. SHOUP and WilliamJ. McCon­nell Unit<"d States Senators; and

Whereas the Legislature thereupon immediately proceeded to vote for lion. Fred. T. Dubois for the term beginning Marcn 4, 1891, in advance of the drawing for terms by the two Senators elect, in advance ofthetimeftxed by law, without first voting in the two houses acting separately, and against the protest of the members of the joint assembly; a.nd

Whereas, upon full consideration of the facts, it is the opinion of the Leg­islature that if the alleged election of said Hon. Fred. T. Dubois is not void, there is at least grave doubts as to its validity: Therefore,

Resolved by the senate (the house of representatives concurring), That at the hour of 12 o'clock meridian of the first legislative day after the passage of this resolution the Legislature will proceed to elect a. United States Senator to succeed Hon. Will1am J. McConnell for the term beginning March 4, 1891, a.nd that such election shall be conducted in all respects in the manner pro­vided in section 15 of the Revised Statutes of the United States.

If the Legislature is the judge of that, it has twice judged the facts and never to the contrary. If, as the majority report says, the Legislature shall be the judge of when it is organized: the two houses each declare that they organized on Tuesday, the 9th, by passing the resolution,-and previous to that time they were engaged in the work of organization. The two houses, when the matter was taken up for them to act upon, in February, judged that they were not organized until Tuesday. That was adjudged by their solemn resolution. Amendments were offered to the effect that they were organized on Monday and they were voted down. The resolution was discussed and 1t was finally de­termined by the Legislature that that organization took place on Tuesday.

What, then, becomes of this talk about the power of the Legis­lature to determine these facts if Congress ruthlessly steps in and says your determination amounts to nothing; that you can n{)t find these facts; that you shall not produce them? We say you might have done something else, and therefore we will hold that you did do something that you did not do, and we will give Mr. Dubois the seat because we want him, not because he was elected by the Legislature of Idaho. That is the position of this report. Nobody will undertake to say that that Legislature has not determined the fa<lt. No one has the temerity to say that it did determine the fa<lt that it was organized on Monday.

Mr. FELTON. I ask the Senator if he intends by his state­ment to be understood that it was necessary to the organization that the Legislature itself should declare that it was organized, and that the organization would not be complete without that declaration? ~ '

Mr. STEW ART. It must be declared either directly or indi­rectly;

Mr. MITCHELL. If the Senator will allow me-­Mr.STEWART. Nowletmeanswer. Itmighthavedeclared

in o many words, or it might go on and legislate. In this case they neither declared it or went on with legislative business. All they did was in process of organization, and until they did manifest in some way that they regarded themselves as organ­ized, they were not organized. It is said that they might have legislated while they were organizing, but that would have stopped the organization; they would have been satisfied that they had a. right to legislate and they would have determined the fa<lt of organization in that way.

But as long as they continued organizing and were not legis­lating and did not declare it by doing any legislative act or re­solving that they were organized, I say the time when they com­pleted their organization and passed the resolution was the time when they were organized. The fact that they refrained from legislative business and waited until they were organized and elected their officers and then passed a resolution shows that they didnotregard themselvesasorganized until theyhadgotthrough with organizing and elected their officers. It is a. sham, it is nonsense, to say that they might with a. temporary clerk have done business.

The !act that they did not so regard it, the fact that they did not so hold it, the fact that they did not do any business, the fact that no legislative body of the United States ever pretended to do business until it had an organization shows most conclu­sively what is meant by the words of the act, "after the organi­zation;" and we have the further fact that in the State constitu­tion, which in the consideration of this matter governs the or­ganization of the Legislature, it was provided that if they did not organize within four days they should not get any pay. It meant that there must be some signification of some time when they were organized; that some act must be done to show that they were rea<ly to proceed to business; that they must either go to business or pass a resolution or do something else to enable them to draw their pay; that they must make some manifestation to show that they bad 'determined they were organized.

No such manifestation was made. On the contrary, by pur::;u­ing their organization, by being engaged in the organization all the time and nothing else, to say that they were organized before they got through with the act of organizing is a contradiction of terms, and it should bring the blush to any man who understands the English language to maintain such a thing. It never would

have been knownhereifit had not been anece~sityforthecombi­nation to go right ahead, on the night of the 17th, with the agree­ment drawn up, and they went in the next day. Of course they had no time; of course they could not give the members time to consider, a.nd of course such an arrangement as that would not stand investigation. It was then or never, and the _statute had to be laid aside and all preliminary steps had to be disre­garded.

What did that proceeding in the joint convention on Decem­ber 18 imply? It implied extraordinary haste to accomplish a purpose that couldnot otherwisebeaccomplisbed. That is what it implied and nothing else. Everybody knows it. It is known to the world. If Mr. Dub<>is is retained here be is retained in violation of the party platform; he is retained here without re­gard to the statute; he is retained here by a construction that will come back to plague us. This· was the beginning of the new session of the Legislature of a new State, and it ought to have been understood and discussed in the two houses as to how the proceeding should be pursued. These resolutions ought to have been passed. There ought to have been no undue haste. Fair play required it. But ii you indorse such proceedings as these you will encourage the violation of platforms, trampling upon your laws, and proceeding in the most irregular way.

This law was passed for the identical purpose of avoiding just such a proceeding as this; to point out and to indicate the steps that fix a time; to create uniformity_. But what becomes of the law, the steps amount to nothing if the time must be disregarded, if the very definition of organization is to b3 blotted out, i:f the precedents of both Houses of Congress and of the States are to be disregarded? I say they might have legislated, but Senators can not find a case in all the books- in all the States where any State Legislature ever did regard itself as 'organized until it had elected at least the presiding officer and clerk.

No State ever atte:!D.pted to legislate or do business. and so fal· as I have been able to find the precedents, all legislative busi­ness suggested while they were in this temporary and crystalliz­ing state has been ruled out of order. Nothing is in order but organization. But here, while they did not pretend to do any­thing but organize, while they did not pre~end to have completed their organization and had appointed a committee on organiza­tion and while that committee was out investigating, they ad­jom·ned and the next morning they elected officers. The r~port of the committee completed their organization, and they passed a resolution. The committee of the Senate tells us all this is very true, but do you pretend to deny that they could have leg­islated the day before? I pretend to deny that they were organ­ized or did legislate. What they might have done is one thintf, what they did db is that to which the law applies. The law 1s plain.

Now, this will be a precedent. Will you say that it will be legal hereafter to wait until the second Tuesday after the organi­zation, as all the States have d,one, or after you have adopted this precedent will you say that they have all been wrong? Will you say now that they may elect on the second Tuesday after they have met and commenced organization? Then the question will always arise, from what stage in the process of organization will you compute the second Tuesday? It will be claimed that each candidate can select such stage as may suit his own iliterests or promote his own success; and therefore the statute will here­after be held to mean the second Tuesday after the Legislature might have organized, leaving it entirely indefinite as to what is an organization.

That law was passed for a definite purpose, to fix the time for the election. The time is important; nothing could be more im­portant than the time. It is universally held that an election before the day appointed is void. We know the disposition to fraudulent election. We know that if we give latitude to the laws what frauds will be committed. We have the affidavits of these men as to how they were deceived on this occasion. We have the solemn action of the Degislature when the matter was called to its attention electing another Senator to represent the State, after due deliberation undoing the former action. We have the explanation of all who were drawn into this trap.

We have the laws violated to accomplish this purpose; and it yet remains to be seen whether the Senate will be a party to the breaking of platforms, of pledges, a party to springing the trap by a written agreement made in the dark of night and deceiving the Legislature so as t{) give color of right to its action. They dared not adjourn; they dared not have it discussed.

Will the Senate be a party to foisting upon the State of Idaho in her beginning such a proceeding as this? I say there is a foundation of dishonesty, of unfair dealing, of disregard of laws and of good morals here such as I have never seen in any Sena­torial election, and if it was carried into the lower elections it would shock the common sense· of mankind.

·No wonder there is a movement to demand that Senators

r

1892. CONGRESSIONAL. RECORD-SENATE. 1397 should be elected by the people ii there is any chance for the Senate of the United States to elect Senators without even the action of the State. If Senators can be elected in violation of pledges, in violation of law, if judgments by midnight agree­ments can be enforced and sanctioned in this way, you will not hear the last of it. A great wrong like this has many voices and it will be brought back to trouble you years after. It will be a precedent that will make confusion. The law that was passed in 1866 has made at least the elections in the several States orderly up to this time; but if you blot out the date, if you say it does not make any difference when the election takes place, if you disregard the necessity of taking separate votes, you will leave it so that it will be a trap of which the members of the Legisla­ture may not know, of which the people may not know when the election is taking place. ·

Here twenty-eight men come up and say they had no idea that a third Senator was to be elected. All these menswearthatthey heard the rumors on the night of the 17th of December that a compact had been formed to elect a third Senator, and then they say they did not know they were going to be forced on before the time fixed by law. Here we have a proceeding inaugurated with­out notice to the parties concerned, a conspiracy secret at mid­night, and it is carried out the next day, and in carrying it out they have trampled upon the law, and we are asked to sanction that.

It is said that this must be done so that Idaho may be repre­sented here. I say that Idaho ought to be represented. Idaho has a right to be represented, and she has a right to be repre­sented by her chosen Senator, chosen according to the forms of the laws of the United States, elected after due notice, so that they may know it is not represented by a Senator elected by a joint convention coming together without any authority of law, meeting fqr another purpose and misled by the reading of tele­grams from Washington, misled in every way, misled by not knowing exactly what the agreement was, and by that · means they get a bare majority to pass a resolution to go into the elec­tion of a third United States Senator and then elect him. Now it is said because Idaho repudiates this, because Idaho comes for­ward and says, ''This is not the Senator we elected; our voice was not beard," we are depriving Idaho of a Senator. I say she is en­titled to a Senator, but she is entitled to the Senator she elected, not to the Senator who was not elected.

It is too important to know when a Senatorial election is com­ing on to have a dozen different definitions as to the time for electing. From the foundation of the Government until now the same definition has been given. Here are the precedents. No Legislature ever attempted to do legislative business until it had permanently organized, and that is the date from which every one goes. That has been examined here and there are no prece­dents to the contrary. Every Legislature has followed that date. When they permanently organize they invariably pass a resolu­tion to that effect and notify the other house, and they date the Senatorial election from that day.

The only exception is the Iowa ca-se. Iowa was wrong tempo­rarily, but she has got right now. That is the consensus of all the authority; that is the necessity of the case, providing we are going to get any guidance from this law. The law is to cover such a case. We must take it from the organization as the Legis­lature declares it and not from the organization we imagine here might be made. When the Legislature is the only power that can determine when it is organized or proeeed to legislative busi­ness, what an absurdity to say, after it has determined that it was organized on one day, that it was organized on another.

Whatever may be the result of this case, if Mr. Dubois retains his seat, I predict great evils to grow out of it, not only in Idaho, but confusion everywhere. Is this to be an encouragement of unfair dealing? There is not a Senator here who, if he was a candidate for the Senate, would not feel outraged as an individ­ual if at night time an arrangement was fixed up to arrange a time for electing a Senator never dreamed of, and to fix a mode of electing him unknown to the law.

The time and mode of this election was fixed in the night, and does not any citizen feel outraged to see it done that way? If there is anything that our citizens dislike it is jobs, and when you see a job you may always know that the law is being circum­vented if possible. The people do not like Legislative jobs. It is one of the evils of the country that the law is evaded, and shall it be evaded here? Shall we say that the Legislature was organ­ized when it was only in the process of organization? Shall we not wait until it gets through and date from that, as all the other States do? In other words, shall we elect a Senator here or shall the Legislature of Idaho have the privilege? The Legislature of Idaho have elected Mr. Clagett. They elected him by voting in both houses. They elected him deliberately by fixing a time. They elected him because there- was a vacancy which ha-d not

been legally filled, and now we are told that the sitting member must be considered and nobody else.

I understand the advantage of the sitting member. He is here and a good fellow and talks to every body and has had the inside track all the time. It is an uneven contest between a sitting member and one on the outside who does not have a chance to see Senators. It is hard to go against a man with whom we are associated all the time and. who is infactagood fellow. Weare inclined that way and we do not look into the case. It is said we are going to deprive him of his seat. He has never been en­titled to the seat.

Do you deprive him of anything? If he had come down and stood by the platform and stood in regular range he would not have got anywhere near this seat. Why did he not come in and be elected the second time if he was the man? Why did he not get the majority if he was the choice of Idaho? It would have bean no trouble. He was notified; he knew the election wa-s coming on; why did he not do it? Because he could not do it any more than he could have been elected if he had adjourned the joint-convention. He had to be elected then or at no time.

Must we say that because a man has not been hei·e and has not had an opportunity of making our acquaint-ance, ~d has not had an opportunity of pleading with us to vote for him, we will not give him a fair hearing, that we will not look into his oase and see that he has his legal rights? That is all he a-sks and all we ask for him, because if Mr. Dubois has a legal right it would be a great offense to deprive him of his seat; but we think we have shown that he has not a legal right. Now, I think in all fairness it would be right to give Mr. Clagett an opportunity to argue this case as a question of law, and if there be no objec­tion I shall make that motion now, and offer a resolution, the present consideration of which I ask, that he have a chance to be heard.

Mr. MITCHELL. Is the Senator from Nevada through? Mr. STEW ART. I will offer the resolution. Mr. MITCHELL. I object to any resolution pending--Mr. STEW ART. I have the floor and can offer the resolution. Mr. MITCHELL. I certainly object to any resolution being

offered on any suhject while this matter is unsettled. Mr. STEW ART. It is on this subject. It is a part of this

subject. Mr. VANCE. I begleave to suggest tothe Senatorfrom Ol·e­

gon that if we wait until this matter is settled it will be entirely too late to effect the purpose of the resolution. '

Mr. STEW ART. I offer the resolution and ask for its present consideration. I think I have the right to offer it.

The PRESIDING OFFICER. The Senator from Nevada of­fers a resolution which will be read.

The Secretary r ead as follows: Resolved, That William H. Clagett, the contestant for the seat in the United

States Senate. now occupied by Hon. Fred. T. Dubois. have leave to occupy a sea t on the fioor of the Senate pending the discussion of the report o:t the Committee on Privileges and Elections, and that he have leave to speak to the merits of his right to the seat and on the report of the committee. ,

Mr. MITCHELL. Will the Senator allow me a moment? Mr. STEW ART. Certainly. Mr. MITCHELL. I ask that the resolution may gooveruntil

to-morrow in order that we may look into the precedents. For one I do not intend to throw any obstacles in thewayofanyrights that the contestant may have. I am not informed as to the pre­cedents of the Senate, and for that reason I simply object to the consideration of the resolution to-day.

Mr. STEWART. I have looked at the precedents. The PRESIDING OFFICER. The present occupant of the

chair would observe that he has doubt as to whether the resolu­tion is in order at this time. He expresses no opinion on that subject.

Mr. STEW ART. Let the resolution be offered and go over until to-morrow on objection.

Mr. MITCHELL. Let it go over until to-morrow and be printed.

The PRESIDING OFFICER. . It will be so ordered. Mr. TURPIE. Mr. President, I concur very sincerely with

the felicitations which have been so often expressed during this debate that the case from Id_aho is entirely without partisan a-s­pects. Both the claimants are members of the Republican party. The question which claimant is entitled to the seat is one wholly judicial. Under all circumstances such a question ought to be purely judicial, but it is gratifying to know that in this case it must be so. Whatever our action may be with respect to the two claimants to the seat from Idaho, it will not change or affect the political complexion of this body.

The theory that the election of a United States Senator is a legislative act, and that it must be in some manner controlled and regulated by legislative limitations and conditions and by the

..

, '

/

'

·.

1398 CONGRESSIONAL RECORD-SENATE. FEBRUARY 24~

action oi the two houses as such, has obtained some credence, Wlien the record of one court or the record of two or three probably from the fact that in the Federal Constitution it is pro- cou;-ts, as we .have often heard them read, is read in a fourth vided that Senators shall be chosen by the Legislature of the sev- court to sustam a defense or to support a recovery, does any im­era.l States, though it is very evident that the term" legisla- plication follow that the court whose record is read is a part of ture" in that section refers only to the body of persons chosen by the court in which it is read? Does any implication follow that the people of the State to perform legislative functions and has the court in whose hearing and for whose purposes the record of no reference to the Legislature as divided into two, three, four, another is read is a constituent part of the court which made the or more chambers~ record? ·

I recollect very well a time in Indiana, and I think the same There is not the slightest implication !rom this provision of custom obtained in all the other States of the Union, when the the statute that the two houses are present as such. Their sap­Legislature of the State elected all the State officers except gov- arate action is read as evidence of an election or of their fail­ernor and lieutenant-governor; when it elected canal commis- ure either to take proceedings or to elect; but it is read as evi­sioners; when it elected circuit judges, as well as JJnited States dence to a third body, which is neither the senatenorthehouse, Senators. Now no elections are left to the Legislature in our and yet it is the Legislature; because by the very terms of the State, and very few, I presume, to the Legislatures of other constitution of the body it should embrace all the members States, excep~ that of United States Senator. The people now elected to either house. Itmustembraceamajorityofthemem­elect, as the Legislatures did formerly, canal commissioners, and · bers elected to both houses. they elect the auditor of state, the secretary of state, the treas- Some Senator may say, why pursue such an endless analogy urer of the State, and attorney-general. between . courts. and Legislatures? Your precedent makes the

The people do sometimes legislate. They legislate when they case very plain as to courts. There is a reason for it, Mr. Presi­vote upon an amendment, or upon the whole body of a constitu- dent. The connection between courts and Legislatures has been tion submitted to them under the modern practice for approval so long continued, and in the beginning the two bodies were co­or rejection. But are the people when they are engaged in the incident; every Legislature was a court and every court was a. election of a. secretary of state or an auditor of state or canal Legislature. One of the first Legislatures ever organized in the CQmmissioner engaged in legislating then? Certainly not. And United States was called the General Court of Massachusetts, if they are not so engaged, how does it come that the Legislature and I do not know whether the name is changed to-day. It had when it elected those officers was in the performance of a. legis- most extensive judicial powers as well as legislative powers. lative act? The truth is as to the election of these 0fficers, either I recollect very well when only Legislatures granted divorces, United States Senators or others, by the Legislature or by the when the Legislature might be appealed to to grant a new trial, people-as the time may come when they will even choose United and it is hardly necessary for me to remind Senators that this States Senators-in neither case is such election a legislative act. afternoon this body is a court. Every Legislature is a court-in

To avoid the multiplicity of functions, and especially of officers, such a question our determination is a judgment, an adjudication, it has been the practice in our Government to add to the regular and we are membez:s of a court in regular session. This is one duties of officers well known certain others for the purpose of sa.v- of the reasons why judicial precedents apply so closely to legis­ing time and saving salaries. For example, judges of courts of lative proceedings. record in Indiana and many of the other States are authorized to There has been some prefatory discussion as to the election of solemnize matrimony. Supposing, now, a judge of a court of three Senators from the State of Idaho, as to its regularityorir­record leaves his associates and the court and goes to the resi- regularity. Idaho had been admitted as a State into the Union. dence of the bride, according to immemorial custom, and cele- That is very clear. It must have been so before this Legislature

' brates a marriage, is it a judicial act; or supposing, as I once wit- was elected. Senators here are divided in three classes in re­nessed, the happy couple come to the court while itis in session, spect to the years at the end of which the term expires,· and the and the ceremony is performed in open court by one of the judges arrangement of these classes is determined here, not by the Leg­thet·eof, is that a judicial act? These judges are also authorized islatures of the Stat-es. Where more than one Senator is elected, to take an acknowledgment of deeds and other instruments of the respective terms of the two Senators elected from a new writing. Is taking the acknowledgment of a deed there in open State are determined here, not by the Legislatures of the States. court or at chambers or in any place within their jurisdiction a The Legislature of a new State can not know certainly as to judicial act? any person elected what particular term he will have in such

Many of the acts of judges are not judicial and many of the a.cts cases. The Legislature of Idaho knew as much as the Legislar of Legislatures are not legislative. As ii to cut up by the root the ture of any other State in like circumstances would know, but opiriio;n that the election of a United States Senator was a legis- with respect to the classes to which the persons elected should lative proceeding, Congress more than a quarter of a century ago belong as Senators, that was known long before the Legislature enacted the law of 1866, in which they remit this duty, according of Idaho met. It was determined by the previous classificatiQll to a precedent much older than the act itself, to the joint assem- of the series of Senators elected from the new States. bly, a b.ody wholly nonlegislative, for I do not think it will be I find here in the Congressional Directory-! have not referred contended for a moment that the joint assembly as constituted to the official journals of the Senate, because I think Mr. Michael' under the act of 1866 is a legislative body. You can not intro- compilation is taken, and taken very correctly, without a single duce a bill, consider a resolution, or take even a single step in error, from those official journals-! find that the classification legislation in the joint assembly. It is a body wholly nonlegis- in the State of- Wyoming, which fixed that in the State of ldaho, lative and wholly devoid of legislative functions; yetitmayelect embraced two Senators, CAREY and WARREN, one of whom was a United States Senator. The express authority is given to this assigned to the class of 1895, and one of whom was assigned to body, wholly nonlegislative, to elect a United States Senator, the class of 1893. This was done in December, 1890, before the showing that this election, whatever else it maybe, isnotalegis- meeting of the Idaho Legislature, and this classification made it lative act. . a necessity that the two Senators elected from Idaho could not

In reference, however, to the survival of the old theory for- belong to 1893 or 1895-those classes would be too largely in­merly spoken of, that the Senatorial election is a legislative act, creased-but they must belong, one to the series of 1891, and the in the debate the other day upon the question of the case from other to the series of 1895, in order to keep up the equality of Florida, I heard the learned and -honorable Senator from Dela- the classes, for that is one of the rules of classification. ware [Mr. GRAY], who, I regret to see, is not present this even- When the Legislature of Idaho met, then, it was fully known, ing, put this question, whether the clause which provided that and it was known before they met, that there were two Senators the journals of the two houses should be read at the opening of to be elected from that State, one belonging to the class of 1891, the joint assembly did not imply the existence of the two houses whose terms expired March 3, 1891, and the other to the class of as such? 1895; and it must have been just as fully known as it is known to

I should answer the question in the affirmative; most certainly us to-day that as to one Senator, whoever he might happen to be it does; it implies the existence of the two houses as such, form- in the drawing of lots, the expiration of his term on March 3, ing a regular session of the Legislature, during which the United 1891, would create a vacancy which must be filled, under the Ian­States Senator must be elected. That distinguishedSenatorfol- guage of the law, by the Legislature of Idaho in session next be­lowed this up with also another question, not reposing in reply fore the vacancy occurred. upon any position himself, whetherthereadingofthesetwojour- Mr. MITCHELL. Will the Senator yield to me? nals did not imply the action of the twohousesas such!. to which Mr. TURPIE. I prefer not to be interrupted. I answer in the affirmative; it most certainly does imply the ac- Mr. MITCHELL. I think the Senator was mistaken in the tion of the two houses as such. But it is their past action; their ·date. I wish to call his attention to the fact that Wyoming was action of the day before. Then the distinguished Senator asked admitted in the same year the Idaho Legislature met. also whether the fact that the journals were read in the joint Mr. TURPIE. I said the same. I was speaking of the admis­assembly was not an implication that the two houses as such were sionof Wyoming as occurring in 1890, and its two Senators, CAREY present in the joint assembly; to which I anBwer, no, not the and WARREN, were seated here before the Legislature of Idaho slightest implication. met .

. 1.

1892. CONGRESSIONAL RECORD--SENATE. / 1399 The Wyoming classification made it an unavoidabm necessity been here; he has appeared; he has qualified; he has run his

tbat{)lle<>f the two Senators :fi.rst.electedlrom the State<>f Idaho race~ his Se-natorial course is finished, and yet be was elected by should belong to the class of 1891, .and that his term should ex- a joint oonvention1 this same jill.nt<Convention., this joint.conven­pire on the 3d oi March, 1891, and the LegislatJ,ll'e of Idaho, which 1 tion following the separate action of the two houses, which aid met in Deoem~r 1md reontinued in session until1891, was the , not specify for whom they vote~ nor for what term they voted, LegiBla.ture next before the occurrence of that vacancy. This law and which ought to have been held under some differe-nt resolu­and these facts, as I said before, were as well known to the Legis- tion or in some different mode. He was ~cted by t his joint latnre, to the people, to the aspirants in Idaho, indeed to every convention, and I take it that, with respect to him, it would be citizen of the United States~ or might have been upon inquiry, the height of injustice for us, in his .absence and after the com­as they are to us to-day. There -could be nothing like inoppor- pletion of his term, to go to work and qu~stion the validity of tunity; there rcould be nothing like surprise; there could be noth- the title by which he sat and acted h~re. It can not be denied ing like suddenness of .action depriving an aspirant to this office that he was a Senaror. He exeTcised e-very function -of a Sena.­of legal rights or lawful rights in this election, because the facts tor~ How, then, shall it be questioned, .and how will you make were -patent, notorious, 11.nd to be gathered from public records it out, that it is not these very questions, th-e tresolutions, and the by every .one who was interested in them long before the action indefiniteness of the vote -and irregularity of the -other prefatory of the Idaho Legislature. proceedings here relied upon? Are th-ey not all res adjudicata and it is very singular, however, that this rank heresy, as I must 'T'esjuneta by the action of this body? No objections were ma.de

denominate it, that the Senatorial election is a legislative pro- to that Senator's qualifieation or admission. ceeding, crops out again in this case. .After we have decided ex- : Indeed these same objections may be urged now to the right pressly adverse to it in the case from Florida it crops out again -of the .sitting Senator, :Mr • .SHOUP. His election i£ as obvious in this case with respect to the meaning of the term "organiza- and as obnoxioustoeveryobjection,asfarasitproceeds:from the tion~3 ' It is based, in the first place, upon the doctrine that the aeti"On of the joint conventio~ as the -election of M:r. Dubois. Legislature of a State is the judge of its own organization; that Was Mr. McConnell n lawful Senator? No one can question this Sen-ate can not judge of the 'Organization. it. Is Mr. SHOUP, the flitting member a lawful SenatorJ> What

I think, sir, there is one fact which the Legislature .of a State objections have ever been made to the legality of his right while are judges of, 1IDd only '{)ne thing, in a Senatorial election; they he has been .acting here? Th~ Mr~ Dubois, quoad hoc, .as far are judges of j,h-e election and qualification of their own members, ' as these things are concerne-d, is also a lawful Senaror. and being 'Such judges they may determine ~bsolutely who shall Now., wh-at !is meant by the term ''organization?"-' I do not constitute the members of the two houses, and in determining think the word in the statute <>f 1866 has any special local or pro­that they determine also who shall constitute the members of the vincial meaning. It is claimed here under this construct ion that joint convention, and that is the only thing that they can judge. the term " ·organization" applies to the .officers of the two h-ouses, We judge of everything else. and that the two houses must judge of the organization. What

Will it be contended that this body is not a judg.e of the.elec- would be the effect of suchan~djudication,ofsucha judgment by tion and quali£oation oi its own ·members? How then shall we 'US? The effect w-ould be to break down the practic.e entircly of judg'B of th-eelectionof our own members under the act of 1866 or ' cleeting hy joint convention and tovitiatewhollythe act of 1.866. the traditional mode pursued ibefore the adoption of the act? ln 'Such a easel. wherever the two houses differed politically with

In the first place, we must determine where the election oc- respect to suell an election, one af the houses w-ould delay .any curred, ·as that of Mr. Dubois di~ in a joint con-v-ention; we must declaration of <>rganization, and mig h t ·even go so far as to declare determine with :res~ to the validity of such joint convention . itself unorganized in order to def-eat a Senatorial election. and the time at whiCh it was held., and the steps precedent to its 'We know what the :strength .of -partisan motives and purposes organization. in ·order, then, to ·determine the validity of this is, and if we abdicate our own authority .and do .not perform the joint convention wemustdeterminewhether necessary steps were duty deyolved on us of judging when the •Organization occurred taken to form it on the day after the second Tuesday after the and what the organization is~ the State senate -or lhonse would meeting -and or~a.nization of the Legislature. We must deter- refuse to .elect a doorkeeper until the time of the electt-on was mine then, in determining the day after the ini1ii.al day of the . pushed beyond a legislative session, and the fGrm.ation of a joint proceedings of the joint rconvention, when the second Tuesday , convention would always depend upon the action of >One -of the and when \the fi.Tst'J'uesdayoccurred, andespeciallywhen the or- houses, the very thing which the :statute intended to guard ganiza.tion 'Of the two houses oc.curre-d, and to determine that we against, and it would be determined by a question about woother must determine what the organization of the two houses is., what the house of representatives of Idaho bad yet elected its chaplain, is the very act that constitutes the organization of the two houses. because without a chaplain the organizati"On is not complete~ he When we have reached that point then the question is, when did is one of the office"!'B, it seems, of the Legislature of Idaho. the ·O ganization transpire? We judge of these things because I do not think that the term ''organiza.ti<>n" in the act, as I it is necessary for us in order to adjudicate the 'One thing, the le- have said befo~ has any provincial or local meaning. If you gality of the election in this case. give it such meaning as that, if it has such s:ignificance, then

Now, sir, there are a number of objections taken to this elec- · organization, theactoforganization, would denominate, describe, tion which apply with equal forne to Mr. McConnell and Mr. and be defined by a. series of actions as variant as the numbers SHOUP. For example, it 1s said that on the day when the two of the States-forty-four. There would be forty-four different houses met separately they only voted once, when it is ·elaJmed meanings of the word -organization, forty-f-our varian11 descrip­they ought to have voted three times, because there were three tions '{)f acts which constitute organ.i.zation, for in our Legisla­Senators to elect. That is an objection taken to the validity of ture we have only a principal clerk and assistants, a doot~keeper, the joint convention. Then, again, it is said in the manner of an and a sergeant-at-arms. Many of the States have not even so objection 'also they ilid not determine when they voted fo:r what many officers. Some of th-e States have no sergeant-at-arms, Senator they voted, whether it was for the long term or for the some -of the States have no doorkeepers, and those two offices short term or the term to fill the v.acancy occurring on the 3d of -are consolidated. March, 1891. Th-at is an objection also to the validity, as they The majority of the States h.avenosuchofficeraschaplainoras claim,o.ftheproceedingsofthejointconvention. Itisalsoclaimed doorkeeper, and by law no such officer .as .a journal clerk; he is th.at the houses passed reBolu~ions for a jointconvention, making simply assistant of the principal secretary. I do not think there no mention of a third Senator. are two States in the Union in which under this interpretation

Now, sir, to begin with, I do not think that the two houses, "organization·" would mean the same. I do not recall any two after they have held a. separate meeting and taken a vote, · if States in the Union which, in respect to -officers of legisl~tive they do so, have anything to do further as houses with the joint bodies, are alik~ ~onvention. It makes no difference whether they passed a reso- I reject, then, that interpretation, not warranted by the lan­lution or not. The joint convention does not depend upon the guage, not warranted by the specific term used, and especially action of the two houses, and after the houses have -once failed unwarranted by the purpose and object of :the act of Congress, to hold proceedings or failed to elect; the joint ·convention is . which was certainly amongst other things to enforce, as far &s created by th13 act of Congress, and whether they passed a reso- 1 Federal legislati-on could do it, uniformity in the proceedings in lution for one, two, or three Senators, or whether they passed a el-ecting United States Senators, whether it was done by the resolution at all, whethBr the house invited the senate .or the action of the two houses or by a joint convention composed -of senate invited the house, or whether there was any movement, the m~mber.s of both. _ · TeciproqaJ. ur otherwise, between the two bodies with respect to I think the conjunction "or" in the statute, quoted in 'One :of th-e joint -convention, is wholly immaterial. It ~ was the duty of these briefs, in which it is said that "if they have failed to elect every member cl each house to meet, under the act of Congress, 'Or have failed to take proceedings" connects disjun-ctively two and organize the joint assembly. altern~tives which are precisely th"B equivalent in -effect of ,each

.But if there was anything in the validity of these objections, I , ()ther. The same oonsequence follows whether there is no -eleo­-wish lor '8o moment to -call the -a.ttention of Senarors to -our posi- tion by the meeting, and the separate voting -of_ the two houses, tion on them. Mr. MeOonnell must be congratulated. He has · or whether there have been no proceedings taken to have a sep-

I

1400 CONGRESSIONAL RECORD-SENATE. FEBRUARY 24,

arate vote of the two houses. The alternatives are precisely equivalent and coincident in meaning. I think every successive step unsuccessfully taken is comprised in the word failure, and every successful step in the case of election is comprised in that word, and whether there was one ballot, or two ballots, or three ballots, or no ballot at all taken, or no meeting held of the two houses separately, neither of these affects the validity of the joint convention.

I have heard the expression used here that this section seemed to imply compulsory action to hold a separate meeting of the two houses and to hold a joint convention. I do not think the statute is compulsory at all. I do not see how it can be. There are no pains and penalties prescribed. Recollect, Senators, we are deal­ing here with -the Legislature of a sovereign State-! will not apologize for using the word-and it is impossible physically to compel either of these meetings. It would be a much better in­terpretation to say the object and purpose of the statute is in the first instance to give to the houses separately a chance to elect, but if they will not avail themselves of that opportunity, to give to the majority of the two houses an opportunity to elect. It is a most liberal statute, without compulsion, and I think without mandate or direction, except that substantially it should be obeyed by the Legislature.

Now, if Congress had gone on and expressly prescribed that the failure of one house should justify the subsequent holding of a joint assembly, I would say that would be sufficient, for in con­struing these two alternatives connected by" or" I would reason, afortim-i, if the failure of one house causes the joint assembly to be called, the failure of two houses can do no less. If the failure of one hous·e is a basis for the organization and existence of the joint convention, the failure of both would certainly have no less effect.

But Congress has not left this matter indefinite. It has not left even a corner for a doubt in the language of the act, for in one of these alternatives it is said "upon the failure of either house." In this discussion I have heard it said either means one. Either means one of two. I do not believe that either ever means one, or that it means one of two only. "Either" always implies two, at least, and it includes both where the con­text is confined only to two objects or subject-matters. "Either" can not be used with respect to one house or any other object, and hence it is never used with respect to the unit absolute. The Christian can not say in reference to the SuJ?reme Being, "either God." It is a contradiction in terms. Neither can any one correctly say in speaking of the principal luminaries of the solar system, "either sun" or "either moon." They may speak of "either moon of Jupiter," because there are several; of "either star," because there are many in the firmament; of ''either pole," with reference to the extremities of the earth's axis, because there are two; of "either tropic," for the same rea­son; but you can not say" either equator." The ~e of the term "either" with reference to a single subject-matter is thus shown to be contrary to the very genius of the language, as well as to the usus loquendi. It is wholly inadmissible. I think that Con­gress has prescribed by the strongest intendment three things upon the failure of the house, or the failure of the senate, or the failure of both house and senate to take proceedings or to elect, the joine convention is in either conjunction of circumstances called into existence and authorized to supply their default.

But it is said, sir, that this joint convention must be held on the day after the second Tuesday after the meeting and organi­zation of the Legislature. What, then, is the organization of the two houses? The word is used here as it always is in statutes when it is not otherwise expressed. It is used in its ordinary signification, just as you would s:peak of the organization of any other public body or the orgarusm of the human body, of any body which is composed of members, of any entity necessary to which there is a composition or organization. It is defined to be the putting in readiness of apublicbodyfor operation, for the exercise of its functions. Organization does not imply, neither does it require, any exercise of function. It is wholly indifferent whether the Legislature of Idaho passed a bill or offered to pass a bill or did anything else after they organized.

The Legislature, I was going to say, by which I had the honor of bein~ chosen passed no law. There was a deadlock from the beginnmg to the close of the session, but nobody doubied that they could have passed laws if they had wished to. The question is not whether the Legislature passed any laws or elected any officers or did any legislative act, but whether it was in the con­dition to exercise its functions, whether it was in astate of readi­ness to exercise its functions, and these functions are not declared or defined by the Legislature and do not depend on any action of the Legislature. They are defined and declared in this case by the constitution of the State of Idaho and conferred upon a cer­tain number of persons chosen by the people, who meet at a cer­tain time and place.

When, then, is such a body organized? In other words, when is it placed in a state of readiness to exercise its functions? I find here in the journal of the two houses that on Monday, the 8th day of December, all the members of the house met-their nanies are given here-in the hall at the capitot, that they ap­peared severally and were qualified by one of the justices of the supreme court, and took their seats. I find also upon page 30 of the same book that all the members of the senate on the same day, Monday, the 8th of December, at the place appointed bylaw, appeared, were qualified, and took their seats.

Now, sir, that was not only a perfect organization, but a full organization of both houses of the Legislature of the State of Idaho. The moment a quorum appeared and were sworn there was an organization; there was a perfect organization. Nothing could be added to it. Nothing could be added to its powers or its functions the moment the call passed the quorum number; but here was something more. There were no absentees; the whole body appeared; and that is the reason that it was not only a perfect but a full and complete organization of both houses.

I know Senators say, "Wb.y, certainly this can be no organi­zation; they must go on and elect a secretary, a doorkeeper, a sergeant-at-arms, and a chaplain; that is one of the functions of the house." But what is the house? The house is the body or­ganized. Can a body unorganized choose a doorkeeper, choose even a speaker? If they can, let us look at the consequence.of that position. To assume that anything but the organization can choose the speaker, the doorkeeper, or any other officer, is to assume that the Legislature can add to its own number.

I know it is yery common on the first day of the session to choose these officers, but before they are chosen the functions under the constitution and powers of the Legislature are defined, and defined as belonging to the house or to the senate; that is, a. quorum of either of these bodies. What additional function or power or authority or what increase of either is given to the house or to tire senate by the election of a doorkeeper or a chap­lain? You say these are constituent parts of the organization and that the organization can not be completed without the elec­tion of these officers. I ask what part of the legislative function dO'ei ther of these officers exercise? What part of the lawmaking power is confided to or devolved upon the doorkeeper, upon the chaplain, upon the janitor, upon the journal clerk?"

The constituent members of an organization must all be en­dowed with equal functions. When we find a person outside of the organization, having none of its functions, he must be con­sidered as a stranger, extraneous to the organization, foreign to the body, entirely foreign to it. I might, sir, hold, in case it were necessary-it is simply obiter here in this ease-l might hold that an organization of a legislative body was not complete until a presiding officer was chosen; but I would not hold it on the ground that the choice of a presiding officer was necessary to complete the organization, because I know that nothing but the organization can make such a choice. Less than the organiza­tion can not do it; less than a quorum can not do it. But I would hold, under certain circumstances, that the presiding officer of either house was a part of the organization, and might be so called because he was so nearly related to, and so closely con­nected with the organization, and always a member of the house; at all events, that he might be considered as a part of it; but I would go no further, sir.

After the house had met and chosen a speaker and after the sen­ate had taken the oath and been qualified and the lieutenant-gov­ernor appears, authorized under the constitution of the State to preside, the organization of each of those houses is complete and perfect. The most definite and concrete description of organi­zation, in fact it is the interpretation of the term given in law writers and in legislative writers, is the quorum. The quorum is the house, the number necessary to transact business, to elect officers, and exercise all other functions; and the house in that meaning must be in existence before any of these functions can be exercised. The quorum is the house; the house is the organiza­tion; the quorum is the organization; and in this case the quorum in both houses appeared on the first Monday, the 8th of Decem­ber.

This may be shown by the succeeding history of legislative bodies. Supposing all the members appear, ora quorum appear on the first day of the session, and there is an organization, yet some time afterwards the organization may be interrupted and the !unctions of the body may be temporarily suspend,ed. How? By an absence of members large enough to leave not a quorum in the body. What follows? How shall the function of legisla­tion be restored? How sh&ll the suspended organization be re­newed? There is no other way, except to procure the attendance of absentees up to the quorum line.

But you say that the employes are necessary to an organiza­tion and are parts of the organization. Would it do any good in the absence of a quorum to suggest to the presiding officer that

,

-

1892 . . CONGRESSIONAL RECORD-SENATE. 1401 t_he Secretary is in his seat, the Chief Clerk is in his seat, the Sergeant-at-Arms is in his chair, and all the employes of the Sen~te are present? I do not think it would amend the matter at all. I have heard of many ways of counting a quorum, but I P,ave never heard of a presiding officer within the metes and bounds of 'Civilization who counted the employes to make one. f'Laughter.] Why are they not to be counted if they are part of the organization, constituent parts of the body, necessary to its 9rganization, without which 1t can not act, and the gentlemen say without which its functions are lost? Why may they not be counted? But supposing we have gone on and procured the at­tendance of members up to the quorum line and we look around and find the employes all gone. Does that interfere with the legislative functions? Not a moment. I do not care, sir, if the presiding officer were gone; we would supply his place and every other in thirty minutes.

So that it will be seen as to these parties held to be necessary and constituent elements in an organization that neither their presence nor their total absence affects the legality of the organ­iZation or affects its functions in any way whatever. Yes, sir; we may elect officers of the house at any time, but we can not elect constituent members; we can not choose them. They have to be sent for. There is this distinction between attaches and instrumentalities and constituent parts of a legislative body or any other public deliberative body. They are to be chosen by our masters. As to the tools, the instruments-! wish to speak with all respect-as to the means of carrying on the exterior labor and the work of the organization, of course the secretary is the pen, the sergeant-at-arms is the hand and shoulder, and the doorkeeper may be the shovel and broom, but they are not parts of the organization.

The human body is a very complex organization. A man might be in such circumstances as to be compelled to 'Write, and he might say: "I can not write. I am willing to write; I am able to write; I know how to write; but without pen and ink and paper I can not write." Does it follow, then, that this pen, ink, and paper are a part of the human organism, although they may be very necessary to the exercise of some things which are imposed

upio~~! issue with gentlemen who say it is impossible to legis­late until officers are chosen. We may simply by designation, as the Senator occupying the chair now occupies it in this manner, authorize any member of this body to perform the duties of the highest officer in it. Why not, then, designate members to per­form other inferior duties, one at the desk, one at the door. I have frequently seen a member of a legislative body carrying a message either to the governor or to the other house, engross his own bill, enroll it, and read it at the desk. I am certain there is no duty performed here by an officer which can not be performed by a member. There is no such thing as an· absolute necessity for any officers. They are wholly matters of convention and con-venience. ,

These views, sir, are very well supported, if they needed any support, by a somewhat careful analysis of part of the first clause in the section relating to the formation and action of the joint assembly. It is said that:

On the second Tuesday after the meeting and organization of the Legis­lature.

Now, sir, it seems to me it must be con,cededin that clause that "meeting" refers to the Legislature and that organization refers to the Legislature. To supply the ellipsis there made by the word ''and," it would be meeting of the Legislature and the or­ganization of the Legislature, or the meeting of the Legislature and the organization of the same. The same body meets which f)rganizes, and the same collection of persons organize who meet.

Now, sir, I can very well understand how members elect of a legislative body can meet each other at the capitol under ap­pointment and in accordance with law, make each other's ac­quaintance, be recognized, be identified, meet the officer who is charged with their appearance and qualification, and meet the general public, which generally assembles on the first day of the session to witness this ceremony. I can conceive that very well with respect to members; but how are the doorkeeper, the sec­retary, and the sergeant-at-arms to meet at this time? Why, it is not known who they are. What credentials have they, what commission, what certificate? How can such creatures-! use the word with all possible respect-as these meet before their creation? They are not even created; they are not even in ex­istence; ,.and yet it is very certain that the members must meet, and that the same persons meet as those who organize.

This word "meet" is used in all the statutes and constitutions of the States in respect of the time when the Legislature shall come together. It refers always to the members of the Legis­lature. The word "organization" rightly interpreted in this clau~ refers to the same persons. It will be seen, therefore, that

from any .correct interpretation of this clause, officers, as they are sometrmes called, are wholly excluded.

The term" temporary organization" and'~ permanent organ­ization," as it is used relating to officers, means nothing at all, and has no relation to the act of 1866. All theoffi"cers, as has been remarked here, of a legislative body are transient, temporary; none of them are permanent. You may say the Senate is per­manently Or!!anized to-day, and so it is, because there is a quorum present, not because there is a Secretary and a Sergeant-at-Arms here, for we can remove those officers at anytime. -There is no reference in the clause to the officers of either House.

The permanent org-anization refers to the organization with­out any adjective. The organization of a legislative body re­lates only to its members; and when enough of its members meet and are qualified, the organization is perfected and com­pleted. I must ask Senators a moment to contrast this inter­pretation with that travesty which has been sought tO be forced upon this body in respect of the meaning of this term.- "Organ­ization,"meaningthequalification and the admission of a quorum or all the membership of a legislative body, is an act everywhere known, recognized, acknowledged, and always under all circum­stances and in all places the same. It is the same ceremony. The act of org-anization of the Legislature of Massachusetts un­der this significance is the same a-s the act of organization of the Legislature of Idaho. The newest and the oldest States both comply with it. It is the same in California as it is in Maine. It is the same all over the free political world wherever the phrase "free parliament" has had course-and it has had magnificent course since 1688,. when it was first used-wherever this phrase of a "free parliament" is used among English-speaking people, this act of organization, and none other, that is, the appearance and qualification of members of a legislative body, is confessed and acknowledged as the beginning of legislative life, the com­mencement, the origin of organized parliamentary existence.

Mr. MANDERSON. I move that the Senate do now adjourn. Mr. HISCOCK. I wish the Senator would withdraw that. to

allow me to make a motion to proceed to the consideration of ex­ecutive business.

The PRESIDING OFFICER. Does the Senator from Ne­braska yield to the Senator from New York?

Mr. MANDERSON. I yield for that purpose. Mr. HISCOCK. I move that the Senate proceed to the con­

sideration of executive business. The motion was agreed to; and the Senate proceeded to the

consideration of executive business. After five minutes spent in executive session the doors were reopened, and (at 4 o'clock and 52 minutes p.m.) the Senate adjourned until to-morrow, Thurs­day, February 25, 1892, at 12 o'clock m.

NOMINATIONS. Executive nominations 'received by the Senate Feb1·uwry 24, 1892.

RECEIVER OF PUBLIC MONEYS.

Charles F. Gardner, of Sacramento, Cal., to be receiver of pub­lic mpneys at Sacramento, Cal., vice John F. Linthicum, term expired.

NAVAL CONSTRUCTOR.

Assistant Naval Constructor Samuel W. Armistead, a resident of Virginia, to be a nav8.1 constructor in the United States Navy.

CONFIRMATIONS. Executive rwm.inations oonfir'Yfl.ed by the Senate February 24, 1892. ENVOY EXTRAORDINARY AND MINISTER PLENIPOTENTIARY.

Rowland B. Mahany, of New York, to be envoy extraordinary and minister plenipotentiary of the United States to Ecuador.

CONSULS.

James Leitch, of Louisiana, to be consul of the United States at Belize.

Charles W. Erdman, of Kentueky, to be consul of the United States at Breslau.

COMMISSIONER OF NAVIGATION.

Edward C. O'Brien, of New York, to be Commissioner of N av­igation.

COLLECTOR OF CUSTOMS.

Charles F. Roberts, of California, to be collector of customs for the district of Humboldt, in the State of California.

ASSISTANT APPRAISER OF MERCHANDISE.

Robert E. Browne, of New York, to be assistant appraiser of merchandise in the district of New York, in .the State of New York.