A bill (H. R. No. 1249) granting a pension to Margaret C. Long;

A bill (H. R. No. 1250) granting a pension to James Rooney;

A bill (H. R. No. 1251) granting a pension to Charles Hamstead;

A bill (H. R. No. 1252) granting a pension to the minor children of Garrett W. Freer;

A bill (H. R. No. 1253) granting a pension to Julia L. Doty; and

A bill (H. R. No. 1254) granting a pension to Frances M. Webster.

Mr. VAN WINKLE. Here are fifty pension bills just sent to us from the House of Representatives. There are twenty more lying in the committee, making seventy, and there are about eighty on the Calendar. I ask the Senate to give me some day next week for the purpose of taking up these bills. Some of them have been on the Calendar since last February. I ask, if there be no objection to that suggestion, that Tuesday next, after the morning hour, be set aside for the consideration of bills from the Committee on Pensions.

Mr. MORRILL, of Maine. I do not like to agree to that. I want to ask the attention of the Senate to the legislative appropriation bill on Monday.

Mr. VAN WINKLE. I will say Wednesday, if that will be more convenient; and as I have had two days set aside heretofore for these bills and got the benefit of neither, I hope the Senate will stick to me this time. I will say Wednesday.

Mr. MORRILL, of Maine. I take this occasion to give notice that on Monday I shall ask the Senate to consider the legislative appro priation bill.

Mr. VAN WINKLE. I hope the Senate will agree to the motion which I have made, that Wednesday next, after the morning hour, be set apart for the consideration of bills reported from the Committee on Pensions.

The motion was agreed to.

CONTESTED ELECTIONS IN WASHINGTON CITY. Mr. HARLAN. I move now to continue the consideration of the District bill.

The motion was agreed to; and the Senate resumed the consideration of the bill (S. No. 534) relating to contested elections in the city of Washington, District of Columbia.

The PRESIDENT pro tempore. The question is on concurring in the amendment made as in Committee of the Whole. :

The amendment was concurred in.

Mr. DAVIS. I offer this amendment as an additional section:

And be it further enacted, That the mayor of the city of Washington shall not hold any other office or place of trust, honor, or profit under the United States in the District of Columbia or elsewhere.

My reason for presenting the amendment is that I understand the mayor-elect is the postmaster of the city, and, in addition to that, is a clerk of the Senate. I have heard it said that he was a sort of omnium gatherum in relation to offices. How many other offices he may hold besides those I have named I am not informed; but, as I suppose, this is piling up the agony rather too high. If he is to be mayor his duties ought to be restricted to that office, and he ought not at the same time to be allowed to hold the office of postmaster of this city and of a clerk in the Senate. I do not know, if he is thus tolerated, how many other offices his voracious maw may take into it under the indulgence of the Senate. I think the amendment ought to prevail.

Mr. HARLAN. I rise merely to correct an error of the honorable Senator from Kentucky. I understand that the present mayor of the city is not an officer of the Senate at this time. He was, I believe, acting as disbursing clerk of the Senate preceding his election to the office of mayor, but on his election to the latter office he resigned the former, and is not now an officer of the Senate.

Mr. DAVIS. Then the honorable Senator informs us that the mayor has dropped one of his offices. I ask him whether he does not hold on to the other, the postmastership of this city.

Mr. HARLAN. I would state for the information of the Senator from Kentucky, that a change in the post office is completely within the power of the President of the United States and a majority of the Senate of the United States. If in his opinion and that of the President and a majority of this body the two offices are incompatible, the remedy is completely within the control of the political friends of the Senator from Kentucky, if a majority of this Senate approve it.

Mr. DAVIS. I ask the honorable Senator if the office of mayor, in its dignity and duties, is not quite enough for one reasonable man? I think, from the Senator's reference to the condition of affairs and of society in this city a short time since, this mayor would have as much as he could possibly do, and do well, to regulate the affairs of the city and to keep in peace and order the population of the city of Washington. I think it is quite reasonable to restrict the mayor to that office. I ask the honorable Senator is there any propriety, any fitness, any proper policy in the mayor of the city of Washington holding at the same time the place of postmaster of the city?

Mr. HARLAN. If the Senator desires my opinion for the purpose of guiding his action, I of course am bound in courtesy to give it.

in their own hands, and it is not best for us to meddle with this matter.

Mr. THAYER. My regard for the President prompts me to appeal to my friend from Indiana and my friend from Kentucky not to press this amendment. The President has it in his power to remove the postmaster if it is incompatible in his view for that gentleman to hold two offices. By pressing this amendment they do in my judgment reflect upon their political leader, the President; and I should regret to see them do it. Therefore, out of regard to the President, I hope the Senator from Kentucky and the Senator from Indiana will not press this amendment.

Mr. HENDRICKS. I did not know that the Senator from Nebraska held the views he has just expressed. I thought he regarded the tenure-of-otlice bill as constitutional and having the legal force of any other law; but I now perceive that he does not believe that law to be constitutional and to have legal force, for the reason that he says the President can turn this man out of the office of postmaster. If the tenure-of-office bill be the law of the land, if it be constitutional, the President has not that power, and the Senator from Nebraska knows it very well. If that be the law, the President of the United States is no longer responsible for the efficiency of the public service-that rests upon the Senate. By that law the President can turn out of office no man who holds office by his appointment with the consent of the Senate, unless the Senate con

Mr. HARLAN. Well, Mr. President, I will state that if any gentleman can with propriety hold these two offices at the same time, I have no doubt that the mayor of Washington can. He is a gentleman of very high character, of a high order of talent, high cultivation, and I have discovered no incompatibility in the law, nothing to prohibit the same person holding both these offices; and if any one could with propriety do it I have no doubt the

mayor can.

Mr. DAVIS. That is a very good answer. It is rather an admission that no man can with propriety hold the two offices, as I understand it; and if that be the meaning of the honorable Senator, I fully accord with him.

Mr. HENDRICKS. On this question I will ask for the yeas and nays. I should like to know whether it is the judgment of the Senate that the same party should hold more than one office with the emoluments. I think it is a principle that governs throughout this country that an individual should be satisfied with one office.

untarily taken upon itself the responsibility of the efficiency of the executive service, and the Senator from Nebraska cannot say that the President can turn this man out. He cannot do it. No Senator need go to the President and say to him that he can do it, because if he undertakes to do it without the pleasure of the Senate being expressed you say he is liable to impeachment, and you propose to impeach him if he does that which the Senator from Nebraska says he can do.

Mr. President, the reason I have called for the yeas and nays on this question is that I think it ought to be the settled judgment of this country that the same man ought to hold but one office; an important office should receive his entire attention. There is no propriety that we should thus heap upon any man honors and emoluments of office. And I will say to the Senator from Nevada, that in Democratic times it was made the law of the United States, and it still stands upon the statutebook, that the same man shall not receive a salary for more than one office of Executive appointment.

Mr. NYE. More than one Federal office? Mr. HENDRICKS. Certainly, one Federal office; so that the view of the country as ex

ought to have but one office; and if you want to pile the honors upon any one man and give him the profits of different offices we shall have the expression of the judgment of the Senate now on this amendment.

Mr. DAVIS. A still better rule than that, if the honorable Senator will permit me to respond, is to allow neither of them to hold an office. [Laughter.]

Mr. NYE. That, I suppose, is the truth of the case, both in the mind of the honorable Senator from Kentucky and the honorable Senator from Indiana. I take it for granted, however, that their great leader can correct this evil. He will do anything that they desire. The honorable Senator from Indiana has but to wave his hand and there can be a vacancy in the post office in a minute; and if the honorable Senator from Kentucky would go in person, the Executive, from his neighboring State, would be too happy to relieve Mr. Bowen from that responsibility. Having strong claims on the Executive, I think they have the corrective

Mr. NYE. I simply want to ask the honorable Senator from Indiana, who is au fait upon all these questions of Democratic principles, whether that law was passed in Democratic times and by Democratic votes alone. It has always been the law, I think, ever since I can remember, that a man cannot receive pay for more than one Federal office at the same time. But, now, I want to ask the Senator if there is not the same impropriety in holding two offices that there is in being nominated for two at the same time, taking the chances of two; if the man succeeds in one very will; if he does not, he falls back on the other. that quite right? If this amendment is to prevail, should there not be an amendment that no gentleman in this Senate, Democrat or Republican, should be a candidate for nomination to two offices at the same time; for instance, the office of Governor of a State and President of the United States. It seems to me absorbing and against the spirit of the old Democratic

Is

law to which the honorable Senator so strictly adheres.

Mr. THAYER. Mr. President, I am one of those who labored under the delusion that the President of the United States had not the right or the authority to remove incumbents of offices without the sanction of the Senate; and I am one of those who also labored under the innocent delusion of believing the tenureof office law constitutional. I believe it to-day. But, sir, my recollection takes me back a couple of weeks since when the Senate declared that the President was not bound by that law. That was the decision, in fact. The Senate declared, by a vote of 19 to 35, that the President had the right to make a removal.

Mr. DAVIS. Do I understand the honorable Senator to acquiesce in that decision?

Mr. THAYER. No, sir; I do not. I most emphatically exercise my private right of condemning that decision, and I as emphatically indorse the decision of the thirty-five who declared that he had not the power to make removals except by the consent of the Senate. But, sir, that decision having been made as it was, I could say to my Democratic friends on this floor who helped to pronounce that verdict of acquittal, that from their standpoint it is unnecessary to make this motion here, because, from their standpoint the President has the right and the power to make the removal. I was speaking for them; and if they will accept my kind offices and good will I will ask them not to put the President in a false position nor reflect upon him by undertaking to pass a motion here which would, in effect, declare that the President did not do his duty.

Mr. HENDRICKS. I will ask the Senator a question, with his permission, before he takes his seat, whether he now repeats the proposition that the President has the right to remove the present postmaster of the city of Washington|| of his own motion? Has he that right?

Mr. THAYER. Without the consent of the Senate?

Mr. HENDRICKS. Has the President that power to remove?

Mr. THAYER. Not according to my view; but if the decision of the Senate on the impeachment case was correct, which I deny, then I should admit that he had the power. But I will say seriously-and I have been serious, as my friend from Indiana has been, all the way through that if the President deems it incompatible with law or propriety for this officer to hold the office of postmaster of this city while he is mayor, he can send in a nomination of a successor to him in the post office, and give the reasons for making the proposed removal.

Mr. NYE. Allow me to make one statement. It is a well-known fact that the commission of Mr. Bowen as postmaster expired long ago. There is nothing in the law to which the Senator from Indiana alluded to prevent Mr. Johnson from trying to remove him. He is subject to the will of the Executive. His commission having expired, he is only holding on until a successor is appointed. The President is at liberty to try to fill the place at any time.

The PRESIDENT pro tempore. The Senator from Indiana has called for the yeas_and nays upon the amendment of the Senator from Kentucky.

The yeas and nays were ordered.

Mr. MORTON. I desire to ask the chairman of the committee a question or two for information. First, I ask him what officer, as the law now stands, has the right to certify as to the result of the vote; and second, I ask him whether there is now, under the law, any provision for which a contested election can be tried, and it can be ascertained what candidate or candidates received a majority of the votes? I should like to know the condition of the law now upon these questions.

Mr. HARLAN. I can answer the Senator best by reading the law in relation to the election of mayor:

"The commissioners hereinafter mentioned shall make out duplicate certificates of the result of the 40TH CONG. 2D SESS.-No. 196.

election of mayor, and shall return one to the board of aldermen and the other to the board of common council, on the Monday next ensuing the election; and the person having the greatest number of votes shall be the mayor; but in case two or more persons, highest in vote, shall have an equal number of votes, then it shall be lawful for the board of aldermen and the board of common council to proceed forthwith, by ballot, in joint meeting, to determine the choice between such persons. The mayor shall, on the Monday next ensuing his election, before he enters on the duties of his office, in the presence of the boards of aldermen and common council, in joint meeting, take an oath, to be administered by a justice of the peace, lawfully to execute the duties of his office, to the best of his skill and judgment, without favor or partiality.'"

Mr. FESSENDEN. What is the provision in regard to ascertaining who are elected aldermen and common councilmen ?

Mr. HARLAN. I will read the law on that subject:

Immediately on closing the polls, the said commissioners for each ward, or a majority of them, shall count the ballots, and make out under their hands and seals a correct return of the persons having the greatest number of legal votes for members of the board of aldermen and for members of the board of common council, respectively, together with the number of votes given to each person voted for; and the persons having the greatest number of votes for the two boards, respectively, shall be duly elected; and, in all cases of an equality of votes, the commissioners shall decide the choice by lot. The said returns shall be delivered on the day succeeding the election, who shall cause the result of the election to be published in some newspaper printed in the city of Washington; a duplicate return shall, together with a list of the persons who voted at such election, also to be made on the day succeeding the election, to the register of the city, who shall preserve and record the same, and shall, within two days thereafter, notify the several persons so returned of their election."

It will be seen, therefore, that in the case of the mayor no certificate or notification is given other than the returns of the commissioners of election for each of the wards to the board of aldermen, and also in duplicate to the board of common council, whereupon he is required to take the oath of office and to enter on the discharge of his duties.

Mr. FESSENDEN. Does not the out-going mayor declare the votes for his successor?

Mr. HARLAN. Not at all. The returns are made directly, in duplicate, to the board of aldermen and to the board of common council.

Mr. FESSENDEN. Of the preceding year? Mr. HARLAN. The existing board of aldermen and councilmen. In the case of aldermen and councilmen it will be seen that it is contemplated that duplicate returns shall be made to the mayor, who may be the outgoing mayor, if he should not be reëlected, and also to the register of the city, who is made the custodian of the election records, and whose duty it is made to notify each party elected of his election.

Mr. FESSENDEN. Has that not been done in this case?

Mr. HARLAN. It has been done in this

case.

Mr. DAVIS. The law read by the honorable Senator, as I understand it, makes no special provision for a contested election.

Mr. HARLAN. There is a succeeding clause which provides that the board of aldermen and the board of common council shall be the judges of the elections and qualifications of their own members, it being, I think, a copy substantially of the provision of the Constitution of the United States relating to the Senate and House of Representatives.

Mr. DAVIS. I will inquire of the honorable Senator if that clause makes them the final and conclusive judges?

Mr. HARLAN. I think so. The Senator rom Indiana [Mr. HENDRICKS] has the law in his hand.

Mr. DAVIS. I suppose, though, that the matter is left to be governed according to the general rule. If there are two candidates for office, and one of them is installed into the office, and the other believes that he is entitled to it because of having been elected according to the law, the latter has the right to assert his claim to the office in a court unquestionably. I suppose that that general law applies to the election of mayor and aldermen here;

but if I am mistaken in that the honorable Senator may readily provide a proper remedy, and that should be a provision to evable a contest between these aldermen, these contesting aldermen or candidates for aldermen, and the contesting candidates for mayor to be brought before a court and to be decided upon the facts according to the law in force at the time the election took place. What objection can there be, if any legislation be needed upon the subject, to that course, I ask the honorable Senator from Iowa?

Mr. HARLAN. The committee attempted to provide the very remedy. If the Senator from Kentucky will allow me, I will read from the fourth section of the bill.

Mr. DAVIS. I have read it. But why intervene other remedies? Why not leave the parties to their prima facie and final rights under the law just as the law existed when the election took place, and let this provision for a judgment as to the rights of contestants before the courts go into operation with the officers holding their respective offices according to their returns, as the law existed at the time the election took place?

Mr. HARLAN. I attempted to explain that a few minutes since. The law as it now stands provides, as to the board of aldermen and the board of common council, that "each board shall judge of the legality of the elections, returns, and qualifications of its own members, and shall supply vacancies in its own body," &c. I find in the law no other mode of trial except a trial by the board itself of the qualifications and elections of its own members.

Mr. DAVIS. This is the suggestion which I make to the honorable Senator, that his bill shall simply provide for the decision by the courts of the rights of the different claimants to this office; let the mayor go into his office under his return as the law existed at the time the election took place; let the aldermen go into office on the prima facie returns just as the law regulated the returns of the election at the time the election took place; and let this bill simply provide that if the candidate who is not inducted into the office of mayor believes that he is entitled to the office, there shall be a remedy for that candidate who believes he was elected but who did not get the return to enable him to contest his right in court. At the same time, let the bill provide that the aldermen who received returns of their election according to the law in existence when the election took place shall go into office; let it further provide that the candidates who contest the right of those aldermen to their seats shall have a remedy in court to decide which has the better right.

That would be even-handed justice between these parties. The Senator from Indiana [Mr. HENDRICKS] stated clearly and distinctly that here was a proposition to establish a different rule for the induction of those candidates into the different offices. In the one case, it is proposed to induct the mayor on the returns made by the officers whose duty it was to make returns of his election under the law as it existed at the time of the election. Nobody objects to that. As I understand, the Republican mayor has received such a majority, and he has been inducted into office. If the opposing candidate desires to contest his right to the office, let the honorable Senator's bill provide a remedy that will enable the contesting candidate to make the issue in court, and that will allow the mayor who received the returns to remain in the office and execute it until that contest is decided in court. So of the aldermen. As I understand, a portion of the aldermen have received their returns according to the law as it existed when the election took place. Let them go into office and take upon themselves the exercise of its duties just as the mayor did upon the returns of the proper officers of the election; and if the opposing candidates believe that they are entitled to the office, and that those men in whose favor the returns were made are not entitled to the office, let the honorable Senator's bill provide that the men who did not get the returns, but who

claim the office, shall contest their right in court just as a contestant of the mayor is authorized to assert his claims in court.

Mr. BUCKALEW. Mr. President, as I do not intend to vote for this amendment, I will state in a word my reasons. The facts seem to have been misunderstood. Mr. Bowen was called into the office of the Secretary of the Senate, as I happen to know, for a temporary purpose in connection with the investigation into the accounts of the late Secretary, with no design or desire of remaining here, and he actually left after the particular duty that he had undertaken was discharged. As to this matter of his holding the office of postmaster, the explanation already made is satisfactory. His term of office expired, I understand, in March, and he is holding custody of the office and managing it until the President and Senate can select his successor. The reason, I believe, for delay in selecting a successor has been the difficulty of the President, among the very large number of applicants, to fix his mind upon|| any one person. There is therefore some delay in sending a name in.

I am reluctant to vote for this amendment saying that the mayor of Washington shall not hold two offices, when in point of fact he is not holding under any regular term, and it is not his purpose or desire to hold the postmastership longer than the President permits him pro tempore to discharge its duties until a successor be appointed. I hope the Senator from Kentucky will withdraw his amendment.

Mr. HARLAN. I merely wish to remark, in reply to the observations of the Senator from Kentucky, that the bill pending was intended to provide, and I think does provide, precisely the remedy which he so clearly describes. It provides that the aldermen and councilmen who hold the certificate of election shall be permitted to enter on the discharge of the duties of their offices; that that certificate shall be held to be prima facie evidence of their right to hold; and the fourth section of the bill provides that any party deeming himself to have been elected adversely to this may appear in the supreme court of the District of Columbia and contest the right of those thus sworn in. The PRESIDENT pro tempore. The question is on the amendment of the Senator from Kentucky.

Mr. DAVIS. I believe the yeas and nays have not been ordered on it.

The PRESIDENT pro tempore. They have been ordered.

Mr. DAVIS. With the consent of the Senate, then, after the explanation of the Senator from Pennsylvania, I`ask leave to withdraw the amendment.

The PRESIDENT pro tempore. The call for the yeas and nays will be withdrawn unless objected to. The Chair hears no objection; and now the Senator withdraws his amendment.

Mr. DAVIS. Now, in lieu of that amendment I will offer this:

And be it further enacted, That the mayor of the city of Washington shall not receive the pay or emoluments of any other office.

I will say a single word in support of this proposition. The honorable Senator from Nevada, [Mr. NYE,] who always speaks with so much force and with so much instruction to the Senate, was formerly a Democrat himself, if I understand his political history. I think that he and his ancient Democratic friend, the Senator from Indiana, [Mr. HENDRICKS,] may come to a proper and correct understanding of what the principle is that was adopted by the Democratic party some years ago in connection with this subject. It was not that the same man should not hold two offices, but it was that the same man should not receive a salary for two offices. We have an example at this time.

The Secretary of the Interior is acting as Attorney General ad interim, as I understand. The principle established by the Democratic party is that a man who is an officer of the Government, and whose whole time and services are presumed to be due to the Government and to the country for the salary that he

receives in one office, shall not be permitted to receive a salary in another or two other offices. That I understand to be the principle, and I suppose it is a very proper principle, at least it has been sustained by the Senate and I believe by the House of Representatives at the present session of Congress. The Committee on Claims have had presented to them and have considered various claims in cases where officers of the Government receiving a fixed salary were called upon pro tempore or ad interim to perform the duties of other offices. They have asked for compensation for the performance of the duties of the other offices to which they were thus temporarily assigned. Their claims for such compensation have been referred to the Committee on Claims, and that committee of the Senate I know has unanimously decided against all such claims for the compensation of an office in addition to the compensation of another office which was fixed by law to the person who was performing temporarily the duties of a second office. I just propose, by this amendment, to apply that principle.

Mr. Bowen holds on to his office of postmaster, as my honorable friend from Nebraska contends, and as the majority of the Senate also contend, until his successor is nominated to the Senate and confirmed by the majority of the Senate. I want the provision which I now offer to meet exactly that case and all other cases, whether of Mr. Bowen or anybody else; so that when he is post master of the city of Washington, under the Government of the United States, and is receiving a fixed salary or a salary partly fixed and partly by commissions, or wholly in the one or the other form, payable from the Treasury of the United States, he shall not be allowed at the same time to receive pay as mayor of Washington. I hope the principle of that amendment will meet the approval of my friend the Senator from Nevada.

Mr. FESSENDEN. I should like very much to get at the exact state of the facts before I can vote intelligently on this subject. I do not know that I understand what the facts of the case are. I have understood them to be as I will state them, and I will ask the hon orable Senator from lowa if my understanding

is correct.

It is the business of the commissioners of election, as they are called, to receive and return the votes polled. They are mere receiving officers. There is a registry of this city, a. list is made out, and the persons whose names are on the list are entitled to vote. The commissioners, as I understand it, are to receive the votes according to the list, and make a return of the votes. They did so in this case, received the votes and made their return; but the next day they undertook to purge the list and make a new return, having assumed to strike out a certain number of votes as having been thrown illegally, thus making themselves judges of the legality of the voting. On that second return, or amended return, the register issued his notices of election, and this bill confirms those notices so far as the prima facie case is concerned. Is that the state of the facts?

Mr. HARLAN. The facts, in the order in which they arise, are these: first, a registry was made, as the Senator has stated, of the voters, of those who were supposed to be entielection occurred under that registry; but tled to vote; and, of course, afterward the between the time of making that registry and the holding of the election Congress passed a law defining the qualifications of voters, providing among other things

"That said section"

referring to a section of the law as to the right of voting

"shall not be construed as conferring the elective franchise in said city on non-commissioned officers, soldiers, sailors, or marines, in the regular service of the United States, situated or on duty in said city, except such as may have become actual residents, with their families, in said city for one year previous to any election."

This law was enacted defining those qualifi cations of electors after the registry was made, and before the votes were taken. On the day of the election, in the fifth ward, and perhaps in other wards, soldiers connected with some of the regiments-I think chiefly the twelfth infantry-who had been previously registered, presented themselves as voters and claimed the right to vote. The judges of the election received their votes, but marked the votes and checked them, believing them not to be legal voters. When the election was concluded, as I understand, the whole result was first certified up to the mayor; but on a close examination of the vote in the ward to which I have referred, it was ascertained that these votes would change the result of the election in that ward. The commissioners therefore made a careful count of these votes of soldiers who had not been residing in the city a year, and who were not therefore legal voters under this law, and attached the affidavits of ten of the officers of that ward, being two thirds, there being fifteen in all, and certified that up to the register with the whole return.

Mr. FESSENDEN. And to the mayor, at the same time?

Mr. HARLAN. No; I think the certificate to the mayor was made first, but I am not sure about that. This, at all events, was certified up to the register of the city, and receiving this return from the election officers of the fifth ward, in which they swore that a certain number of voters whose votes had been received, indicating them, were not legal voters who had cast their votes for certain candidates, the register of the city made out his notification to the parties who were duly elected according to this certified statement of the election officers.

Mr. HENDRICKS. I wish to ask the Senator for information a question. Is the vote in this city by ballot, and if so, how did any body know how those parties voted? Certain votes are excluded. I want to know how anybody knew that those voters voted for this candidate or the other candidate in that sort of a transaction that he is describing.

Mr. HARLAN. It was the easiest matter in the world to ascertain that by checking the ballot and checking the check list, which I understand was done.

Mr. HENDRICKS. Was the ballot checked? Mr. HARLAN. I understand so. Believing that the party presenting himself was not a legal voter under the law, they received the ballot, but marked it, and also marked the check list of registered voters.

Mr. HENDRICKS. Was there any authority of law for those officers to do that?

Mr. HARLAN. I am not able to answer that question. I am not sure what the regulation is on that subject.

Mr. FESSENDEN. I should like to ask the Senator from Iowa another question. Are the persons who make out the list and the commissioners who are appointed to receive the ballots the same board, consisting of the same persons, or are they different?

Mr. HARLAN. They are different officers. Mr. FESSENDEN. What power, then, had the commissioners, who are merely to receive the votes of men on the check list, to do anything but receive them? How could they go behind the check list and assume to mark ballots and mark lists? What had they to do except receive the votes and certify the votes received?

Mr. HOWE. I cannot answer that question, perhaps, as well as the Serator from Iowa can; but it seems to me another question is quite as pertinent as that; and that is what law there is to prohibit these canvassers or these commissioners of election or anybody else who sees a ballot put in to put a mark upon it to identify that particular ballot, so that when it is opened he may know who threw that ballot, as the face of the ballot will show whom it is for?

Mr. FESSENDEN. The answer to that is that introducing any such principle interferes entirely with the freedom of election by ballot.

It is never known, in any place I ever heard of, that those receiving the votes exercise any such power.

Mr. HOWE. If there was a law protecting the freedom of election to that extent, then this act was a violation of that law; but if there was none, I take it it would be interfering with the freedom of the action of the commissioners to prohibit them from doing it.

Mr. FESSENDEN. I can only say that in my own State and all other States that I ever heard of, where there was a registry of votes made out by a certain class of officers appointed for that special purpose, their list is conclusive and the votes of those persons are to be received; and the power which those who receive the votes, the commissioners of election, have, is simply to receive the votes of those persons and to see that no other persons than those on the list vote. They have no power whatever except to receive aud count and return the votes.

Mr. RAMSEY. Allow me to suggest that in some of the western States the officers of election number the tickets as they are put into the box, and put the same number upon the name of the vote on the check list.

Mr. FESSENDEN. If that is so provided for by law, it can be done.

Mr. RAMSEY. It is by law.

Mr. HOWE I take it there are no election laws anywhere in any State framed for the purpose of preventing an investigation as to the actual result, the true result of any election. That is always, under the election codes of all States that I know anything about, a subject for investigation, and some tribunal is authorized to go behind the returns and ascertain the fact.

Mr. FESSENDEN. The law here says the board of aldermen and board of common council shall do it.

Mr. HOWE. As the law now stands in reference to the election of aldermen, the tribanal is the board of aldermen; and in reference to the election of common councilmen, it is the board of common council, as I understand. That is the tribunal. Now, here is a bill to give an appellate jurisdiction, an appeal from the decision of those boards, and, I take it, it is competent for the national Legislature to provide such an appeal; but wherever that tribunal is, it has this power of determining, if the evidence exists anywhere, no matter what you may say about the freedom of election, how every man voted. That evidence is not always attainable, but in almost all elections it is attainable, and perhaps in all it is. Certainly it is in a city of this kind, for you may put over every single voter whose name is on the check-list upon the stand and make him swear how he voted. But if the ballot be marked so that the commissioners of election can determine by a number on it or a mark on it whether that ballot was thrown by Mr. Brown or Mr. Jones, then the commissioners of election, when they open the ballot and see whom it is given for, will know just as well whom Mr. Brown and Mr. Jones voted for as they did themselves, and they can make that proof which, independent of this mark, Mr. Brown and Mr. Jones would have to do before the tribunal. So that I see nothing in this bill or nothing in the conduct of the commissioners of election which interferes with the freedom of election, as we understand it. There is no freedom of elections which sanctions the vote of a man whom the law prohibits from voting, and there should be none to that extent. All there is in this bill, it seems to me, that is anomalous at all, is the fact that it provides an appeal from an adjudication which, prior to the passage of this bill, was conclusive. I do not think there was anything very wrong in that.

Mr. FESSENDEN. The Senator from Wisconsin has evidently mistaken this bill. The first section of this bill provides that the register's certificate in the existing case, in this case by a law passed after the fact, shall be conclusive as to the prima facie right. That

is the provision. There is no fault found with the provision in the fourth section that there may be an appeal to the courts.

Now, let us look at the operation of it. I am not saying that it may not be all right enough; but I want to get at the exact facts. Here these commissioners of election, whose duty is simply to receive the votes of those whose names are on the list, undertake to check the votes of certain persons, and to ascertain how they voted. When they make their return, and their only business according to law is to return the actual number of votes thrown, instead of doing that, they assume to be judges, to a certain extent, of the election, and they mark a certain number of ballots and return that a certain number of ballots thus marked were thrown by soldiers; and then the register, instead of taking the whole return which gives the prima facie right to seats to one set of men, undertakes to throw out the ballots thus marked and thus give the prima facie right to seats to another set of men, and issues his notices accordingly. That is the fact about it, and this legislation proposes to make that decision of the register conclusive as to the prima facie right to the seats, thus taking perhaps the organization of the boards out of the hands of one set of men, and putting it into the hands of another set of men. That is the effect.

Sir, I do not hold to any such doctrine as that. I do not know but that I may vote for the section under the circumstances; I may or I may not; but I am simply wanting to get out the facts so that the Senate shall understand them and the principle upon which this bill is founded.

Mr. CORBETT. My idea of judges of election is that they are appointed to inspect the votes as they are offered; that they are to judge who have the right to vote under the law; and if they are in doubt as to the right of any individual, the judges being usually composed of half of each of the opposing parties-half Democrats and half Republicans

Mr. FESSENDEN. The Senator will allow me to tell him that in regard to these parties, they are not judges; they are merely ministerial officers to receive the votes. The judges of who shall vote are the men who make out the list originally of the voters. When they make that list they judge who shall be put upon it. These commissioners of election are nothing but ministerial officers to receive the votes of men whose names are on the check list, and no more. They have no power to judge at all.

places.

Mr. CORBETT. I do not know exactly how it is here, and that is what I wish to understand. I know it is so in our city-the judges receive the votes of those who they agree are entitled to vote; and if they are in doubt as to the right of a person who offers to vote they check the vote and check his name, so that if afterward on examination they find that the man is not entitled to vote they may exclude his ballot; if he has a right to vote, they count it. I do not see why that might not be done here by agreement between these judges.

Mr. CORBETT. They are chosen, I think, from the two political parties, as a usual thing. Mr. FESSENDEN. That depends upon the Now, the Senator says there is nothing wrong law in each particular place. How it is in this in marking these votes, and there is no law || place I do not know; it may be so in some against it. Is there not? I thought the idea of the ballot was that every man should vote independently, and secretly if he chose to do so, and not have anybody know how he voted. I have always understood that to be the doctrine of the ballot. Why not vote viva voce? Because then every one knows how every man votes. The idea of the ballot is that a man may vote without having it known, unless he chooses to have it known by showing his ballot for whom he votes; that he shall not be subjected to other influences. If you may mark the soldier's vote, you may mark my vote if I am a resident in the ward and have been there twenty years, you may mark the vote of every man, no matter who he is whose name is borne on the check list, and you may thus publish to the world, what the voters may not choose to have known, how every man voted in the election. I say that course of proceeding is a palpable violation of the whole doctrine and idea of the vote by ballot, which is that a man may vote freely and have nobody to overlook him.

The Senator says that possibly men may have voted who had not the right to vote. There is a remedy for that. The board of aldermen, who are to decide this question when it comes before them, on looking over the list, if a remonstrance is made, or if a remonstrance is not made of their own motion, may find certain names which they have reason to believe are not the names of legal voters, persons who did not come within the law, and ought not to have been allowed to vote. They have the power, in that case, to call those voters before them, or to take any other evidence that may exist, and find out, if they can, how those men voted, and thus purge the list so as to get rid of all illegal votes. That is the way in which it is done, and the way in which it ought to be done; and the idea that a man simply appointed to receive votes, and receive votes that are on the check list given him by proper authority, saying, "Sir, you will receive the votes of these men and no others," has a right to mark the ballot of any man when it is thrown, and then to open it and return it as questionable, is a new idea to me with regard to proceedings of this kind. I say again, if that doctrine is to prevail you destroy the secrecy of the ballot. You do not help it by saying that the commissioners think that certain men may be illegal voters, may not have a right to vote. That is a matter with which they have no concern. If they can mark the vote of one man they may mark the vote of every man, and the result is that the ballot amounts to nothing but a viva voce vote.

Mr. FESSENDEN. The honorable Senator from Oregon will allow me to suggest to him that it is barely possible that the law of Oregon does not prevail everywhere else.

Mr. CORBETT. That is true.

Mr. FESSENDEN. His argument applies to this case if that law prevails here, and if it does not it does not apply.

Mr. CORBETT. I should like to have the law stated with regard to the manner in which these votes are cast, if the Senator from Maine can inform me.

Mr. FESSENDEN. I do not know. The Senator from lowa can probably give the information.

Mr. HARLAN. My attention was absorbed with another matter at the moment, and I did not hear the Senator's inquiry.

Mr. CORBETT. I should like to know whether these judges or commissioners are to judge as to the right of individuals to vote when these votes are offered, whether they have any right to judge at all under the law of the District of Columbia.

Mr. HARLAN. That is a disputed question. At the election one year since, the judges excluded certain colored men from voting, and the Republicans at that time held that they did it illegally; that they were wrongfully excluded, although the judges maintained that they were not residents of the District. The question, as far as I know, has never been settled whether they have a right to exclude a man whom they know to be an illegal voter or not. But I will read the oath which, I understand, the officers take previously to entering upon the discharge of their duties as commissioners:

"The said commissioners shall, before they receive any ballot, severally take an oath or affirmation, to be administered by some justice of the peace for tho county of Washington, truly and faithfully to receive and return the votes of such persons as are by law entitled to vote for members of the board of aldermen and board of common council in their respective wards, according to the best of their judgment and understanding; and not knowingly to receive or return the vote of any person who is not legally

entitled to the same.' The polls shall be opened at ten o'clock in the morning and be closed at seven o'clock in the evening of the same day. Iminediately on closing the polls the said commissioners for each ward, or a majority of them, shall count the ballots, and make out under their hands and seals a correct return of the persons having the greatest number of legal votes for members of the board of aldermen and for members of the board of common council respectively."

Mr. CORBETT. It seems to me that that constitutes the board judges of the election, though they are named commissioners.

Mr. FESSENDEN. Was not that law passed before the registry law? Has not the registry law been passed since?

Mr. HARLAN. It has been.

Mr. FESSENDEN. That varies all that. Mr. HARLAN. I understand, by inquiry from the mayor-elect, that this is the oath still administered to these officers.

Mr. FESSENDEN. That may be; but the registry law makes other men judges of the qualifications of the electors.

Mr. HARLAN. They are appointed by the supreme court of the District.

vote from public knowledge so far as that single act would tend to protect it and no further, leaving to all other tribunals, judicial and legislative, every other means of determining these two facts: first, whether a man voted who had not a right to vote; and, secondly, how that man did vote, how his vote influenced the election. Both of these facts must be known in order to secure a fair result to the election.

Now, sir, as recited here, the facts in this case seem to be that these commissioners, who, the Senator argues, had a mere ministerial duty and they seem to have regarded such to be their duty themselves-took the votes of men whose names they found on the registry, and yet who, they believed, were not authorized to vote. Holding that they had not the authority, under the law as it stood, to exclude them, they received the ballots; but it seems they did put a mark upon them, so that they could identify the ballots. It turns out that they were right in their suspicions, that these men had not the right to vote, that the law clearly prohibited them from voting. But I understand that as the law is to-day, the only tribunal which can determine the right of these individuals to vote is the board of aldermen and the board of common councilmen, and I suppose that their adjudication has been in favor of the right instead of against it.

Mr. HARLAN. That the Senator may know the exact facts, I will state that the Conservative members, as they are called, hold that one set of officers were elected in that ward, and the Republican members hold that another set were elected, and they have organ

Mr. HOWE. Idesire to make a few remarks in reply to the argument submitted by the Senator from Maine. I am disposed to try this question, not upon the laws of Oregon or of Maine, but upon the laws prevailing here in the District of Columbia, so far as I understand what those laws are; and I will not, for the purpose of what I have to say this morning, raise the question whether the form of the oath just read here as prescribed to the commissioners of election constitutes them judges of election, or vests in them any discretionized separately, and have two boards of comover the question as to who may or who may not vote; but I will assume that they have a mere ministerial function, and that the duty prescribed to them by law is simply the duty of taking the ballots from the individuals whose names are borne upon the registry. I will assume that this is the only duty prescribed to them by law. But that that is the only labor they may perform, or the only duty with which they may charge themselves in reference to the election, I do not concede. I think they may go further than that. I think they may do any one and every single act with a view to secure a fair and full expression of the legal voters in the ward or in the city which the law does not prohibit them from discharging. It is upon that point, if upon any, that I am at issue with the Senator from Maine.

He assumes that for them to undertake to know how an individual votes whose right to vote they deny, but have not the authority to determine under the law, is a violation of the secrecy and privacy and sacredness with which the law shelters this right to vote. Now, I think he assumes more than the law declares. The law has simply provided that the electors shall vote by ballot; but if in providing that they might vote by ballot it was the purpose of the law to provide that the way in which they voted should never be known, that the individual for whom they voted should never be known to the public, then it was necessary not only to prohibit the commissioners from putting any mark on the ballot, or taking any cognizance of the way in which the individual voted, but it was necessary for the law to prohibit any judicial investigation as to how they voted. It was just as important to prohibit the board of aldermen from calling one of these soldiers before them to make him swear how he voted as it was to prohibit the marking of his ballot when it was received.

But I assume that the law did not intend to cover with the veil of secrecy this fact because it has not done so; it has not prohibited the commissioners from marking the ballot; it has not prohibited the board of aldermen from making the individual swear how he voted. And because it has not done any of these things, but has simply authorized him to put the name of his candidate upon a piece of paper, instead of declaring it at the polls, I assume that it was the purpose of the law only to protect the

mon councilmen and two boards of aldermen. Mr. HOWE. That makes it a little more mixed; but I am assuming that the whole board of aldermen has decided that these soldiers that your law prohibited from voting had a right to vote, and that they put the law under their feet. I do not care whether it is a minority, or a majority, or the whole board who have done it. The question is whether the supreme authority of the nation stands concluded by that adjudication, no matter how many par took in it. I say it was a fraud. If the voting of the soldiers was a fraud on the law, the adju dication of the aldermen in determining that they had a right to vote was a sanction of that fraud; and if that adjudication had been made by the supreme court of the District it would still have been another sanction of the fraud; and if it had been made by the Supreme Court

of the United States it would still be a sanction of the fraud, and if it were made by the Congress of the United States it would be only

another sanction of the fraud.

Mr. DAVIS. I will ask the honorable Senator a question, with his permission. Mr. HOWE. Certainly.

Mr. DAVIS. If a soldier resides in the city of Washington, is he not entitled to vote here?

Mr. HOWE. The law as it stands gives him a right to vote if he has had a residence of a year here, with his family, before the election. But I understand-1 am not trying the case myself; I am speaking on the statements made here-I understand that soldiers who had not resided here a day, never had a residence here except as members of a regiment, went to the polls and voted.

Mr. DAVIS. I will ask the honorable Senator another question, with his permission, first stating that I have understood the fact to be different from the statement he has just made, though he may be right. He admits that the officers of this election marked some of the ballots.

Mr. HOWE. I understand it to be so.

Mr. DAVIS. Had they not as much right to indorse the name of the man who deposited a ballot upon the ballot as to mark it? Mr. HOWE. Yes, sir.

Mr. DAVIS. Had they the right to do either? Mr. HOWE. Yes, sir; they had a right to do both, simply because the law did not prohibit them from doing either.

Mr. DAVIS. That would not be a secret ballot.

Mr. HOWE. I say the law does not provide for a secret ballot; it provides for a ballot. If it provided for a secret ballot it would require your ballot boxes to be deposited away from human supervision, where a man could go to it alone out of sight of the rest of the world and there put his piece of paper in. The law does not provide for a secret ballot; it provides for a ballot, and at the same time the law provides that the proper tribunals may know for whom that ballot was given, and every ballot.

Mr. DAVIS. I will ask the honorable Senator if the law provides for an open ballot? Mr. HOWE. No, sir; it provides for a ballot.

Mr. DAVIS. I will ask the honorable Senator if putting the voter's name on the ballot would not make it an open ballot?

Mr. HOWE. No, sir; not necessarily an open ballot. An open ballot is a ballot which is open and displayed, as I understand it; but I do not understand that the law prohibits an open ballot. A man has a perfect right to go to the polls with an open ballot and put it in. I do not know that the commissioners would be authorized-for I have not seen the full law-having taken the ballot to open it, and yet, unless there is something in the law which prohibits them, they would have the undoubted right to do that thing.

Mr. HENDRICKS. To examine and read it? Mr. HOWE. To open the ballot, unless the law prohibits the opening of it. I do not know how you would punish them for doing it.

Mr. HENDRICKS. Then they have the right to make a record of the vote cast and how it was cast, as evidence?

Mr. HOWE. Just as good a right to make it as the board of aldermen would have to make it; just as a good a right to make it as the supreme court of this District would have if good a right to do it as any tribunal which you give them appellate jurisdiction; just as assumes to bring a man before it and make him swear how he voted. They make up a record and publish it to the world. Why? They do it in order to determine whether the law has been observed at the election or not.

Now, as I was trying to say, I understand that certain men did come to the polls, whom the law forbade to do so, and cast these votes. I understand that the tribunal with whom rests right to vote has affirmed their right to vote; now the jurisdiction to try and determine their and the question is, shall we stand concluded by that judgment, or shall we provide by au another trial, an appellate trial of that quesexercise of legislative authority for a new trial, tion? I think if there is any reason to believe that this injustice, this outrage upon the law has been perpetrated, it is our bounden duty, our most solemn duty to provide some tribunal to retry and readjudicate the question.

But the Senator from Maine [Mr. FESSENDEN] says that this bill now pending makes the certificate of the register prima facie evidence of the right to hold the office pending the litigation. I understand that is the effect of it. What is there wrong about that? Is it not as fair for the law to base the prima facie right on the certificate of the register as on the return of the commissioners of election or as upon the adjudication of the board of aldermen? It is the province of the Legislature to say what shall or shall not constitute the prima facie right, and to say what shall be evidence of the prima facie right.

Mr. HARLAN. If it will not be an interruption of the Senator, I have the law now on one of the points that he has been discussing, and will read it. It is section seven of the act of January 8, 1867:

"That the officers presiding at any election shall keep and use the check-list herein required at the polls during the election of all officers, and no vote shall be received unless delivered by the voter in person, and not until the presiding officer has had opportunity to be satisfied of his identity, and shall find his name on the list, and mark it, and ascertain that his vote is single."