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Mr. FESSENDEN. That shows it exactly; || duties are given to a ministerial officer he i propriety of the thing; but I will now say, that is all he can do.

need not confine himself to those duties, but that when they went no further than to identify Ar. HOWE. The Senator says that shows anything else that suggests itself to his discre. the votes given by men whose right to vote

it exactly, and that is all he can do. That is tion, his idea of what may be right and proper they thought was questionable under the law, onld all the law charges him with the duty of doing; | is open to him, if not prohibited by law. Why, it was a proper act unless there was a statute 1 aཀ

but I say he could have done several things sir, that would upset all the rules of judging which prohibited the doing of it. cais beside that, and undoubtedly did do, on the of the acts of ministerial officers. The hon- Mr. FESSENDEN. There I differ with the Jenny very day of election, some having reference to prable Senator is a learned lawyer. He has | Senator. That is the very matter I am dis

the fairness of the election, and some having been upon the bench. Did he ever hear of all puting. I say that was undertaking to do a no reference to it whatever. I say he could certain maxim, “ Expressio unius est exclusio | thing which they had no right to do; that it do anything which the law did not prohibit alterius?"

interferes with the very idea of the freedom him from doing.

Mr. HOWE. I can translate that.

and purity of the ballot box to have ministerial Mr. DAVIS. I will ask my friend a ques. Mr. FESSENDEN. I know the Senator officers undertake to do any such thing. That tion with his permission. If the law as it can translate that. I supposed it was a well || is where the Senator and I differ. stood at the time the election took place au- known maxim, and particularly applicable to But I was commenting upon the principle of thorized one officer to make the return of the ministerial officers, that if certain duties de- law which the Senator laid down with so much election, is it within the competence or withiu fined by law are devolved upon a certain set confidence and elaborated, that a ministerial the propriety of Congress to pass a subsequent of men those duties they can perform, and officer may do anything which is not prolaw authorizing another officer to make a return none others, in relation to that act, legally. hibited. of the election? They cannot go beyond them.

Mr. HOWE. And I stick to it. Mr. HOWE. Yes, Mr. President. གས པས་

Now, what does the seventh section of the Mr. FESSENDEN. Undoubtedly. The Mr. DAVIS. After the return has been law passed only last year, read by the honora. Senator never says anything he does not stick made by one officer, then there is an appeal | ble Senator from Iowa, say? Simply this : to, right or wrong, I believe, if he has once to Congress to select another officer to make that these commissioners of election inay re- given an opinion. But his sticking to it, more a different return?

ceive the votes of all those persons whose or less, is not any reason why I should believe Mr. HOWE. Yes, Mr. President, the law names are borne upon the check lists, as they his doctrine. could authorize all the people in the District are called or whatever they are called, and But, sir, I was not arguing whether these of Columbia to make a return, and each one that they may examine them so far as to ascer- ballots were to be thrown out or these rotes could make a perfect return, I take it. I do tain the identity of the individual, and that he finally to be counted. I did not undertake to not see any necessity for doing anything of has a right to vote; and there it stops.

argue that matter at all. I was endeavoring that sort. The question is, after all, and it is Mr. HOWE. Will the Senator allow me to ascertain for myself what this bill was; and the only question, whether the steps taken in to ask him one question?

I did not even say whether I might not vote for this election are final steps, are adjudications Mr. FESSENDEN. Certainly.

it; but I wanted to understand distinctly what which bind all the people of the District, all Mr. HOWE. Suppose the question is whether it was. I agree that this case is a very singular the candidates who were voted for, and bind these commissioners of election could do any. one; but I was trying to learn whether the the tribunals of the country. If they were final | thing which the law did not instruct them to do object of the first section of this bill was not adjudications, that is the end of litigation. If in reference to this election. Suppose it to be to legalize that very thing in an individual case, they were not, then it is perfectly competent an established fact that they did open

the bal. and a case that has gone by. That is what I for the legislative authority to furnish new trials || lot, the ballot wbich Brown put in, and see was coming to. The fact having transpired, it as long as in its discretion it thinks justice can that he voted for Bowen, and afterward come appears unquestionably that if these officers be promoted by new trials--a new trial by the on the stand and swore to it, what is the court had not interfered with the ballot-box, not supreme court of the District, and another one going to say about it? Are they going to undertaken to open and mark these votes and by the Supreme Court of the United States if receive their evidence, or not? And if the mark these men, a certain set of men would they see fit to do so.

court receives that evidence, what is going to have been entitled to their seats on the prima Mr. President, I have said perhaps more be done with the commissioners ?

facie evidence, whereas they did undertake to than I had need of doing:

Mr. FESSENDEN. There is no doubt about interfere with the ballot-box, they did open Mr. FESSENDEN. Mr. President, I only that. That is a question I am not discussing, the ballots, they did mark the ballots, and the wish to comment a little on two points made what is to be done with the commissioner. A consequence is, that they make a return upon by the Senator from Wisconsin, leaving the great many things may be done which are which a certificate is issued to a certain other others to take care of themselves. The first wrong. I am discussing the propriety of the set of men. That is the consequence; and it is an admission which he makes which covers thing, and the Senator is maintaining the pro- is that which this first section undertakes to the whole ground I assumed, and that is

, he priety of the thing, that they had the right to do legalize. What I was trying to get at was that says this voting by ballot, receiving votes, is it, and it was all proper, or else bis argument the Senate might be in possession of the exact only intended to protect the secrecy of the amounts to nothing.

facts, and being in possession of the facts, each ballot so far as that act is concerned, to use his Mr. BUCKALEW. If the Senator will per: Senator can vote, and stick to it, as the Senown language. That I agree to, and that is all mit me, I will state that in Pennsylvania the ator from Wisconsin does, according to bis own I have been contending for. I admit with him offense is indictable, and there are a great | notions. that all this matter of balloting can be revised many penalties for not merely peeping into the Mr. FRELINGHUYSEN. Mr. President, and reviewed by the competent and proper tri:

ballot, but for meddling with it in any way. I agree with the Senator from Maine, and I bunal which is finally to pass upon the fact of We understand that those laws are simply a think all of us must, as to the general principle .election. What I contended for was that the il sanction to the general principle of the secrecy that the ballot must be held secret and sacred. Fery idea of voting by ballot is founded upon of the ballot.

It is a great right, and is not to be invaded. the idea of secrecy; ihat every man should be Mr. HOWE. I simply want to say to the But I do not think this is a case where it is at liberty to vote in such a manner as not to Senator from Pennsylvania what the Senator invaded. The law imposed a duty upon these have his vote known, if he saw fit to do so.

from Maine said to the Senator from Oregon, commissioners who received the votes, which That it may be discovered afterward by any

we are not trying this question on the laws of was, to receive the ballots of those who were particular judicial course marked out to estah- Pennsylvania.

registered. That was one duty. But after lish the fact whether A or B was elected is no Mr. FESSENDEN. Still, they illustrate that registry was made another law was passed, doubt necessary; but so far as the act is con. the idea of the sanctity of the ballot, so far as which was binding upon every officer, upon cerned, as the Senator calls it, I contend that the receiving officers are concerned, and that everybody, that a certain class of persons, be has the right to vote, if he has complied is all I was talking about. I should not have some of whom were registered, should not with the other requisites, without having those

said so much if the Senator from Wisconsin vote-soldiers who had not resided here a who receive the vote ascertain how he votes.

had not defended this act as not only the right, ll year. If they can mark his ballot we may just as

but the duty of the commissioners to open Mr. HENDRICKS. What law does the well have the open vive voce vote in the Eng;

these ballots, peep into them, mark them, and Sepator refer to? lish fashion. Our fashion is as I have stated mark the men. I say it interferes with the

Mr. FRELINGHUYSEN. I refer to the it , and for the reason that I have given. It is very idea of the ballot, with the purity of

law which was read, passed after the registry founded on the idea of secrecy; that a man's vote should not be open to the supervision of elections, and the independence of elections,

and before the voting. everybody about him, of those who receive his I go upon the general principle.

Now, then, the commissioners had two duties Mr. HOWE. The Senator misunderstands to perform: one was the ministerial duty of pole even, that he may be perfectly free and

what I have been driving at. I have not been receiving the ballots; and another was the duty independent in the act. That is the idea of it; and ihe Senator concedes it so far as the act is

trying the administration of these commission to preserve the purity of the election ; that it

ers at all. I understood him to reply to the should be according to law ; that illegal votes concerned, he says; and that is as far as I go.

Senator from lowa, who said that there was a should not be admitted; and what do they do? Now, sir, as to the Senator's other legal idea,

mark upon these ballots, that that could not | They do the only thing, I think, that could that a ministerial officer may do anything that

have been done. They could not refuse to is not prohibited to him, that is a new legal fact with a view of showing that the means receive the votes. Therefore, they received principle. I had always been educated in the

were at hand, in reply to the Senator from them. They were not at liberty to permit a idea that a ministerial officer could do just Indiana, of learning bow these soldiers voted, fraud to be perpetrated upon the election; and what the law pointed out to him to do, and

and the Senator from Maine said they could therefore, inasmuch as these were only nomnothing more. But the Senator says if certain l not do it. I did not undertake to argue the ll inal and not actual voters, they marked those

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ballots. I do not think that was an invasion of upon a court to which the question night go, result than any other citizen of the District of the sanctity of the ballot. The commissioners I need not now discuss; but upon all executive Columbia. Why, sir, if they could do it the took the only course that could be taken to officers it is unquestionably conclusive, and the next day they could do it the next month. obey both laws.

law so provides expressly, plainly, and dis- As soon as the paper is signed, and by them As to this bill being retroactive, let me say tinctly. When these people come to vote, it delivered to the proper officer in the District that it is no objection to a law that it is retro is thus regulated by the next section :

of Columbia, their work is done. Are Seneactive, if the thing, when it was done, was

"That the officers, presiding at any election shall

tors prepared to say that after an clection honest and fair and just, and the only defect keep and use the check list lierein required at the board bave counted the votes, have declared in it was a technical one, because the law had pols durin, the clection of all officers, and no vote the result, have cerufied that result to the not provided for such a case. It is perfectly

shall be received unless delivered by the voter in
person, and not until the presiding officer has had

{bree proper departments of the government legal and proper and competent for Congress opportunity to be satisfied of his idensity, and shall of the District of Columbia, they may uul. now to say that this return of the commissioners find his name on the list, and mark it, and ascertain Jily it? of election, being just, shall be the legal evithat his vote is single."

I ask Senators if under the law, as read by dence, prima facie, of the election of those Now, what may these executive officers do? the Senator from loiva, the return of the mentioned in the return. Therefore, I cannot Not revise the list, not adjudicate the question oflicers of the election board is not the title of see that the great principle of the secrecy and whether any man found upon the list is a legal a man to the office? After his title has been sanctity of the ballot is by this proceeding voter, but they may ascertain his identity. A established by that return that board, baving invaded, but that, in fact, the only course was vote being presented, the board refer to the gone out of oflice in respect to that particular taken which could preserve the fairness of that list. If the man's name is found there, the election, being functus oficio, has no more election.

board may ascertain whether this is the iden- power to disturb that return than a man has Mr. CORBETT. I always supposed the tical person mentioned in that list. Ascer- to mutilate and destroy his deed after it has been secret ballot was for the purpose of protecting taining that fact, the board must receive his delivered. That return is the evidence of right to the voter from the outside pressure that might vote, because this is an executive body, not a the man elected to his office. You might as well be about the polls, intended for intimidation. judicial body, not a revising body.

mar and mutilate the deed that secures to a man The commissioners or judges of election are Now, Mr. President, this whole proceeding his land as to destroy the evidence upon which the judges of the legality of the votes usually, was hail immediately before the election. The rests his title to public office. It is impossible and I presume were intended to be so in this lists were made out. They were exhibited in that the thing shall be done as is proposed in case. They were to judge who were the legal public places in this city. Any person whose this bill. According to law these returns were voters and who were not. I do not see that name was not found upon the list had an made. According to law these returns were there was any impropriety in the commissioners opportunity within five days before the elec. the evidence of the rigat to the office; and of election checking these ballots in the man- tion, when the board was in open session, of after that riglit is vested, fixed, and estabner which has been stated, when they were going before the board, and if his right to vote lished according to law, Congress cannot take satisfied in their own minds that they were was questioned of producing his evidence; the that office from the man. Congress may abol. illegal votes, or that there was a doubt about board would hear his evidence; and upon that ish the office, but being elected io it, according them, and when they came to open the ballots evidence adjudicate the question whether he to all the decisions, he bas a right in his office, and to count them, to declare that there was was a legal voter. If any voter observed upon a rigut that Congress cannot take from him, such a number of soldiers' votes cast, and

these exhibited lists the name of any person except that that office itself, for public con. report that fact and report that they were who was not a resident of the District and not siderations, may be abolished. illeval.

within the description of a voter contained in Then I ask, Senators, when this law which Mr. HENDRICKS. Mr. President, I have the law, that person, for the purpose of cor- the Senator from lowa read, passed in January, a little to say on this bill. The act of January recting, purifying, and purging the lists, could

1867, defines the qualification of the voters; 8, 1867, authorizes :

also go before the board, and it would be the when the law says ibat there shall be a board "Each and every male person, excepting paupers

dury of the board then to hear the evidence for to decide in advance who is a legal voter; and persons under guardiansbir, oflbonge of twenty- and against the right of the voter. That evi- when the law says that the list made up by one years and upward, who has not been convicted of any infamous crime or offense, and cxcepting per

dence being thus heard in open court, if I may them shall be made public so that the people sons who w:tyliavo voluntarily given aid and com- so express it, the adjudication is bad; the

may examine it, and have it corrected; when fort to the rebels in the lato rebeliion, and who shall name is put upon the list, or the name is have been born or naturalized in the United States,

the law provides that that board of registration and who shall havo resided in the said district for

strieken from the list, according to the judg: shall hold an open session immediately before the period of one year and three months in the ward

That list then, being thus corrected, the election, and that board hoids that session, or election precinct in which he shall offer to vote." being thus conclusive, is handed to executive and the right of the people to vote is fixed by Those are the qualifications. The act spe.

officers that they inay decide who shall vote, the board, where may that be reviewed ? Not cifies that a soldier, a sailor, a marine, and an

not to decide whether a party is a legal voter, | by an executive officer. I do not question that officer shall have been a resident in fact of the

for that has been adjudicated according to för fraud or for palpably wrong decision it may District of Columbia for one year; but if he

law, but to decide, in the language of the law, be corrected in the courts. That question is were such a resident, he was as legal a voter as

the identity of the party who presents a ballot. not now before us; but that it can be corrected any other. How is the right to vote to be ascer:

I understand the facts to be, that upon this by an executive board authorized simply to tained ? Not by the election board; but the

list were found perhaps one hundred or more receive the ballots, identify the voters, count act from which I have read a portion of a sec. soldiers. That list was exhibited ; known to

the ballots, and declare the result-ibat that tion makes provision upon that subject:

the people; the adjudication had; and what board, executive in its character, can review

did that adjudication settle? It settled that " That tho mayors and alderinen of the cities of

and revise that list is impossible. Washington and Georgetown, respectively, on or those soldiers were citizens of the District of

Sir, upon what principle are a hundred votes. before the Ist day of March, in each year, shall pre- Columbia, having bona fide residences in the excluded by this board of election, after the pare a list of the persons they judge to be qualified

District, and entitled to vote; and when that to vote in the several wards of said cities in any olecjudgment was made by the board of registra

yoters have passed the scrutiny that the law tion; and said mayors and aldermen shall bein open session to receive evidence of the qualification of tion I deny that the election board had any

has provided, after they have gone before the persons claiming the right to vote in any election right to inquire whether these men were legal inquiry, to be residents of the District of Co

board of registration and been found, upon therein, and for correcting said list, on two days in

voters. each year, not exceeding five days prior to thoan

lumbia as required by law? Upon what eviDual election for the choice of city officers, giving previous notice of the time and place of each session | received the votes. They marked the ballots.

But, sir, what did this board do? They dence has that been reversed ? I ask Senators, in some newspaper printed in said District.”

after that board of election received the balI will not rediscuss the question of the proThe next section provides: priety or impropriety, the decency orindecency | counted those ballots, after they certified the

lots, after they identified the parties, after they “Thaton or before the 1st day of March the muyors

of marking the citizen's vote or the soldier's and aldermen of said cities shall post up a list of

result to the proper officers and departments voters thus prepared in one or more public places in

vote. I deny the riglit, and I simply now enter of the city government, npon what evidence said cities, respectively, at least ten days pricrto said my protest against the right of any officer to did they reverse the decision of the board of annual election."

mark and mar any man's ballot when the law The list must be prepared by this board.

registration? These men stood, according to authorizes him to vote by ballot. But the the finding under the law, as legal voters. votes were received. The identity having been

It is said that they were not residents of the the people in somne public places so that the established to the satisfaction of the board of District of Columbia? Upon what evidence people may judge of the correctness of the list; election the votes were received, counted, the was that decided? The election board received and after it has thus been exposed, this board, result declared under the law, and that certi: noevidence. These soldiers' votes were marked, immediately within five days before the election, fied by the board of election and handed to shall be in open session for the purpose of cor- the proper officers in the District of Columbia.

contrary to decency in my judgment. After

they had cast their votes, after it had been recting the list; so that if any person has been When that was completed the board was decided that they should vote, they went from ornitted from the list he may come before the functus officio. It had no more work to do. the polls ; and in their absence, when they had board ; and so that if any person be improperly As executive officers they had received the bal

no hearing, when their evidence could not be upon the list, any other voter may make com- lots, they had counted the ballots, they had received, then it was that their ballots were plaint to the board and have the list corrected. declared the result, they had certified that re- taken from the box, torn up, if you please ; This investigation is somewhat judicial in its sult to the board of aldermen and board of then it was that those votes were stricken out, character; and when made, and when this list common council in the city, and to the regis- | not upon evidence, not upon inquiry, but by is thus completed, it is conclusive upon all ter; and, after that certificate had been thus the wholesale. Every man that was known to election officers. Whether it be conclusive given, that board had no more power over the Ill be a soldier was excluded from his ballot,

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because he was a soldier, upon a general pre- to be a proper inquiry in this body on this bill. goes to take his seat as a member of the board . sumption that he had not lived in the District I simply take the law as it stands, and I ask he does not take it by virtue of the letter of of Columbia a year; not as you would inquire that the prima facie right shall be respected notice from the register. He presents himself as to the right of A, B, and C to vote in the uwil by judicial proceedings it shall be set aside. and demands to hold his seat by virtue of the District, but upon the general proposition that This bill is offensive in this: that in regard to certificate that is on file with the board of the entire company or companies were to be the mayor the prima facie right is to be re- aldermen.

excluded. It is proposed now in this bill to spected ; in regard to the aldermen, it is to be Mr. WILLIAMS. I should like to ask the igre de legalize that transaction; in other words, to otherwise. Is that right? Are Senators will. Senator a question.

put men in office who are not elected (for I | ing thus to cut the Gordian knot, in the lan. Mr. HENDRICKS. Certainly.
deny that that election can be called in ques- guage of the Senator from Massachusetts ? Mr. WILLIAMS. I ask him if the alder-

Mr. HARLAN. The Senator surely does
ief !
tion as was proposed in this business) for party

man does not present his notice to the board ? : purposes. It is not to be tolerated in this counnot intend to misrepresent the bill.

of which he is a member as evidence of his try ibat the votes of men, after they have been Mr. HENDRICKS. No, sir.

right to a seat? received, after they have passed all the tests Mr. HARLAN. There is nothing of that

Mr. HENDRICKS. By no means. He may in the tes that the law provides, shall be taken from the kind in the bill, if I am capable of compre

read it or not. idle baik

box and not counted by an executive board. hending its meaning. The bill does propose Mr. WILLIAMS. What does he carry with Juard bra It cannot be endured. The interests of neither that the men who hold these certificates of him to the board to indicate that he is elected?

party will endure that. It is the right of every their election shall enter on the discharge of Does he carry the returns of the election with bas du

man that these votes shall be counted after their duties as aldermen and common council him?

their legality has been ascertained in the mode men until their right to so hold their offices shall Mr. HENDRICKS. No, sir. terit les prescribed by the law.

be set aside by the supreme court, providing

Mr. WILLIAMS. What does he carry? Mr. President, the law as it stood at the the very thing the Senator bimself has proposed Mr. HENDRICKS. The law provides that time of the election and at the time the certifi- in his proposed instructions to the committee. those returns shall be on file with the board. cates were given, was that the certificate of the The bill as it now stands provides that the Mr. HARLAN. Not at all. board of election should be the evidence of the mayor who is prima facie elected, who has Mr. HENDRICKS. Yes, sir; and if the election of an alderman ; it should be the evi. been sworn in according to the previous law, Senator will send me the book I will show it. dence of the election of a member of the coun: shall remain mayor until his right shall be Mr. HARLAN. It provides that the returns cil. That was the evidence provided. This decided in court, and that the aldermen and of the election of mayor shall be made to the bill proposes that the register's notification councilmen who have the certificates of elec. boards of coinmon council and aldermen ; shall be the evidence. Why shall that be inter- tion shall be permitted to hold those offices but that the returns of the aldermon shall be posed now? Has not this certificate gone to until their right shall be set aside.

made to the register. the register, and has he any evidence beyond Mr. HENDRICKŞ. May I ask the Senator Mr. HENDRICKS. If the Senator will the certificate? Has he any evidence beyond what certificate these men hold?

send me the book I will find it. Here it is : the certificate that has gone to the aldermen Mr. HARLAN. A certificate from the regis. "Each board shall judge of the legality of the elecand to the council? None. He was not at the ter of the city, the officer directed by the law tions,returns, and qualitications of its own members." election. He is not made by law an appellate to notify the officers of their elections, as I Now, I ask Senators if the board is to judge tribunal to decide whether these soldiers were read some time since froin the charter. If the upon the letter or notice that the register may legal voters. It is now proposed that a new Senator will hand the book I will read it send to a member of that board, if ihat is the oficer, never authorized to review the proceed- again.

conclusive point upon which they are to be ings of an election, having no judicial authority, Mr. HENDRICKS. I know all about that. adjudicate ? but a register to simply place on file these The Senator need not trouble bimself to read Mr. WILLIAMS. I say, if the Senator papers, may review this; that he may set aside that for the purpose of informing me.

addresses himself to methe election; that he may give a certificate that Mr. HARLAN. He is the only officer that Mr. HENDRICKS. No; I did not specially the law did not allow him to give at the time is authorized to tify to an election. The address the Senator, but I shall be very happy the election took place ; that he may reverse

commissioners make a duplicate return, one to to hear him. the evidence upon which men are entitled to the mayor of the city, and one to the register Mr. WILLIAMS. I will answer, if the their offices. As well may the Legislatures of of the city. The law does not direct the mayor Senator has no objection, that prima facie the your States after you, Senators, bave been to notify the parties elected or to give them any person having that notice is entitled to his elected and the Secretary of Stale, under the certificate whatever, but directs him to publish seat just as much as the Senator is entitled to seal of the State, bas evidenced to this body in the newspapers the return of the commis- his seat in this Senate when he presents the your right to hold your seats, provide that some sioners-nothing more--to make a publication certificate of his election; but if any person partisan may issue a certificate that shall be of for the knowledge of the public; but the law afterward appears to contest his right to a higher authority, upon which you shall be does direct the register to notify the parties || seat, then the board may proceed to examine turned from your positions in this body. Sir, elected of their election ; so that the register is the evidence upon which that notice was given. it is not right. This bill is not right.

the only officer in the city who has the right to If, bowever, there is no controversy as to the As to the question who is elected, let it be issue a certificate of election. He has done so right of the party having the notice of his elecascertained judicially. If the law as it now to these aldermen and common councilmen, tion to his seat, he takes his seat by virtue of stands does not give to any of the courts the and this bill provides that they shall bold, as having that notice in his possession, and that power to make the inquiry, I will vote very having the evidence, prima facie, of their right is sufficient evidence for that purpose. cheerfully to give the courts the necessary au- to these, offices until that right shall be set aside

Mr. President, the thority. "If there has been fraud in this elec by the judiciary—the very thing the Senator return is also to be made to the mayor, who is tion, let us know it. If it ought not to stand himself wants.

also to make a publication of it.

Now, I ask let the court say so, but not a partisan, not a

Mr. HENDRICKS. The law which the Senators if that proclamation is the evidence register. Who is the register, and why shall Senator bas in his hand provides that the board of election? Would any Senator think of prehe decide and revise and review? How is he of election shall certify the result of that elec- senting that in a court of justice as evidence known to us? Upon what principle do we tion, and the register is simply the keeper of of ihe election? Suppose the question should undertake to say that the evidence which made that certificate, and when that certificate is arise as to who was elected in a certain ward, the title to the office good at the time shall be filed with him he simply gives notice to the alderman or member of the council, would any set aside by the decision of the register in this party of wbat that certificate contains. He is Senator in maintaining an action before the city?

not a judge, he is simply a clerk to inform the court undertake to introduce either the notice Mfr. President, I propose that this bill shall party of what has been certified to his office, of the register or the publication of the mayor? be recommitted to the committee, with instruc. ibat the party may enter upon the discharge Clearly not. It is a mere statement from the dions to report amendments providing that the of the duties of the office, not by virtue of his original. The certificate of the election by the person having the evidence of his election to notice, but by virtue of the certificate which is election board, the men who count the votes any office as provided by the law in force at the conclusive evidence upon the question. and declare the result and certify the result, time of the election, shall be entitled to enter

Let me call the attention of the Senator to gives the evidence, and whenever it is conupon the discharge of the duties of the office, a feature in that law which shows that my con- tested it must stand upon that. mind to hold the same until his prima facie struction is clearly right. That law provides Now, Mr. President, as I understand the

that if the vote be the same for the two candi- | facts, the board of election in the fifth ward, ceedings. My proposition is simply this: that dates, then the board shall decide the result having counted the votes, certified the result as the evidence required by the law established by lot. The board must adjudicate how the of the election. That certificate was placed a prima facie right at the time of the election, vote stands, what the vote is, and if the vote is on file in the proper offices. Atterward, the so it shall stand until judicial proceedings shall

a tie the board is to award the decision by lot, board undertook to review their own certisiset that prima facie right aside and Congress take that mode of ascertaining who is to hold cate, and to ascertain some additional facts shall not undertake to legislate one man into

the office. There is no force given to this which they had no jurisdiction of, which they office and another out. This election has not

notice. It is no evidence of title to the office. had no right to consider.
of ,

Mr. HÄRLAN. The Senator will allow me but I do not choose here to discuss it. Some is in the board of aidermen and the board of

to say that I do not understand that to be the facts are within my knowledge that are very

councilmen of the city. The election board precise state of the facts in their historical offensive, in my judgment, to men who desire

order. must return to each of those boards a certifihonest elections ; but I do not understand that

As I have been informed, they made cate of the election, and when the alderman out one of the copies and sent it to the mayor,

de iS SIE HENDRICKS.

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ard afterward, in making out the duplicate, in Mr. WIILLEY. No, sir.

excluded. If the tenure-of-office bill be legal examining the ballots carefully, they made the Mr. DAVIS. Do I understand the honor. and valid in its operation, which I say it is discovery I before recited, that if these votes able Senator to say that the President can not, but which the honorable Senator from were illegal that they supposed were illegal, remove Mr. Bowen?

West Virginia says is the fact, that man Bowen the effect would be to change the result of the Mr. WILLEY. The Senator will under- is not out of the office of postmaster of this election, and in making out the first and only stand me to say that Mr. Bowen's term of city; he is in it; he is in the performance of return to the register of the city, the legal cus- service has expired. He is not in office now. its duties; he is in the receipt of its pay and todian of these documents, they appended to Mr. DAVIS I will ask the honorable Sen. || emoluments, and is so entitled to continue it affidavits setting forth the facts.

ator whether he is in office or out of office until a majority of the Senate shall say that Mr. HENDRICKS. I will ask the Senator now?

he shall go by confirming another nomination from lowa, before he takes his seat, what evi. Mr. WILLEY. He is ont of office.

made for the same office by the President of dence the election board received in regard to Mr. DAVIS. According to the honorable the United States, the residence of these soldiers ?

Senator's position, there is no postmaster in There is no difference in principle between Mr. HARLAN. I am unable to answer the city of Washington. He does not say de the case of Mr. Bowen, such as the honorable that. I have not looked into it, and I do not jure or de facto. He says that the late post- Senator from West Virginia sought to draw, know. master is out of office.

and the case of any other officer who is in Mr. HENDRICKS. I understand the facts Mr. WILLEY. He is discharging the duties office receiving the pay and emoluments of to be that they declared that al} the soldiers of two offices at the same time.

one office, and a bill should provide that he were not legal voters; that they were all non- Mr. DAVIS. Now, Mr. President, where should receive the pay and emoluments of residents of the District of Columbia, and is the difference in principle? It is now a gen: another office. I will put this question to the excluded the whole of them upon the list of eral law of the United States, and has been honorable Senator from West Virginia : if names which they marked and the ballots which for many years, that no man who is in office, there was a collector of customs or of internal they marked.

receiving the pay and emoluments of one office, revenue or any other officer receiving pay and Mr. HARLAN. I will ask the Senator what shall receive the pay and emoluments of another emoluments, and a proposition was made to is the evidence of that fact?

office at the same time. The honorable Sen- give to that officer the pay and emoluments of Mr. HENDRICKS. That is the statement ator has recognized that principle repeatedly another office, assigning to him the performwhich I have not seen controverted. It is about in the Committee on Claims, and bas voted ance of the duties of another office, would he the same character of evidence that we have for its application in denying several classes yote against a proposition withholding from been acting upon in regard to this whole busi- of officers who charged pay or emoluments for that officer the pay and emoluments of the ness. There is no very satisfactory evidence a second office from making such charge against second office, or would he vote that he should to support this bill one way or the other. My the Government. In that he did right. In have both? I have no doubt the honorable proposition is a fair one, that the prima fucie | that he acted in conformity to a general law Senator would vote that he should not have right shall prevail until the cases are heard in of Congres that has been in force and effect the pay and emoluments of the second office. the courts. If gentlemen desire to do justice for many years, that no individual who holds I know no difference of priuciple or fact beaccording to the custom in such cases, and what one office and is receiving the pay of that office tween that case and the case of Mr. Bowen. seems to me at least fair and right, there can shall receive the pay of another office at the Mr. Bowen is mayor of this city, prima facie, be no objection to this proposition.

same time. Now, sir, suppose the President The PRESIDENT pro tempore. The ques.

and probably accordirg to law. At any rate, of the United States should make another he is installed into the office; he is receiving tion is on the motion of the Senator from In- nomination for this office, and the nominee the emoluments of that oflice. He is also dianu, to recommit the bill to the Committee was thrown before the Senate, if he were a postmaster of the city of Waslıington ; and I on the District of Columbia with instructions. Democrat the honorable Senator from West propose that wliile he is mayor he shall not · The motion was not agreed to, there being | Virginia would vote against him.

receive the pay and emoluments of the office of on a division--ayes 9, noes 24.

Mr. WILLEY. How does the Senator know postmaster or any other office. The proposition The PRESIDENT pro tempore. The ques- that?

is understood by the Senate. If the Senate tion now recurs on the amendment offered by Mr. DAVIS. Judging from what you always intends to be inconsistent, and to give a Repubthe Senator from Kentucky, [Mr. Davis.] do.

lican Radical favorite the pay of two lucrative Mr. DAVIS. I ask for the yeas and nays on

Mr. WILLEY. The Senator knows very

offices, as well as their honors, be it so. I that amendment: well that that is not always the case. If he

cannot do anything myself except submit. The yeas and nays were ordered.

would extend his recollection no further back The question being taken by yeas and days, Mr. SHERMAN. I should like to hear the than the last twenty-four hours, it would sat- resulted-yeas 7, nays 31; as follows: amendment read. isfy him that that statement is not justified by

YEAS-Messrs. Buckalew, Davis, Doolittle. HendThe Chief Clerk read the amendment; which the facts.

ricks, McCreery, Patterson of Tennessee, and Vickwas to insert as an adultional section :

Mr. DAVIS. The Senator now refers to his ers-7. And be it further enacted, That the mayor of tho vote upon the confirmation of the minister to

NAYS--Mesgrs. Anthony, Cartell, Chandler, Cole, city of Washington shall not receive the pay or England.

Conness, Corbett, Cragin, Ferry, Frelinghuysen,

Harlan, Howard, Howe, Morgan, Morrill of Maine, emoluments of any other office.

Mr. WILLEY. I will say further, if the Morrill of Vermont, Nye, Patterson of New HampMr. WILLEY. Ordinarily I think this is a Senator will allow me, that when Mr. Johnson

shire, Pomeroy, Ramsey, Ross, Sherman, Stewart, correct principle when there is a proper case turned out every Republican appointed in West

Sumner, Thayer, Tipton, Van Winkle, Wade, Willey,

Williams, Wilson, and Yates--31. to which it can be applied; but Mr. Bowen is Virginia my colleague and myself agreed to ABSENT-Messrs. Bayard, Cameron, Conkling, now holding the position of postmaster of this the confirmation in their places of about half

Dixon, Drake, Edmunds. Fessenden, Fowler, Griunes, Democrats. city, not by virtue of a commission. The term

Henderson, Johnson, Morton, Norton, Saulsbury,

Sprague, and Trumbull--16. of his office has expired. He is doing it for Mr. DAVIS. I understand the Senator, then, So the amendment was rejected. the accommodation of the public. It is not to assume this position: that when the Presian office of the same character as that to which dent of the United States makes a nomination

Mr. BUCKALEW. I move to amend the he has been elected. It is not like the instance of a Democrat competent to perform the duties

first section of the bill by striking out the mentioned by the Senator from Kentucky of of postmaster of this city he will vote for his

words “ satisfactory evidence," in the fifth the Secretary of the Interior acting also now nomination without regard to bis politics.

line, and inserting the words regular official as Attorney General. If he shall hold the Mr. WILLEY. The Senator will under

returns ;'' so that the section will read: office any longer of postmaster it will be for stand me, that whenever a nomination is made,

That whenever any person has received, or shall the accommodation of the public, and not if it suits me, I will vote for it; if it does not,

hereafter receive, a certificate from the register of because he is holding on to the office at his will not.

the city of Washington, based upon regular official

returns furnished by the coin missioners of election, own instance, but simply because the Presi. Mr. DAVIS. Exactly; and the nominee notifying him of his election to any elective office dent does not appoint some person in his place. will be sure not to suit the Senator unless he

of said city, &c. Under these circumstances, if he discharges is a Radical. I do not quarrel with him about This amendment raises directly the true for the public the duties of that office, and also that, and do not object to the honorable Sen- point involved in this first section. These comdischarges the duties of the office of Mayor, I ator voting for or against the confirmation of missioners of election were appointed by the cannot see the propriety of depriving him of any nomination of the President upon any judges of the supreme court of the District. the compensation of both offices under the cir- consideration which he deems proper. But I Their duties were, under the law, to receive cumstances. If the circumstances were dif

am assuming now what is the fact : that Mr. the votes of persons on the registration lists, ferent, of course I should have no objection to Bowen is still postmaster of this city, and that to count the votes, and to make a report to the amendment.

he will continue to be the postmaster until the the mayor of the city, who was to give notice Mr. DAVIS. I suppose if Mr. Bowen was

majority of the Senate shall say that he shall in the newspapers of the result. They were nominated to the oflice of postmaster, that the pot be the postmaster. The general principle then to make a copy or a duplicate of their honorable Senator from West Virginia would is simply this, and it is the only principle return and transmit it to the register. That vote for the confirmation of the nomination ; involved in the case, that a man shall not be was done; and it was after their duties under and I presume that every Senator present would allowed to receive the pay of two offices at the law were completed, and upon the day folgive the same vote. Then he would continue the same time. That is the principle, and lowing the election: that a part of these comto receive the pay of mayor, and also the pay every man can comprehend it. It is either missioners proceeded to make out another of postmaster. The bonorable Senator from right or wrong: If it is right in other cases,

paper or another return. In any judgment, West Virginia assumes the principle that the it is right also in the case of Mr. Bowen. If

they had no more right to make it than a President cannot displace Mr. Bowen. others have to be excluded, he should be member of the Senate had, because their

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duties under the law were performed. What ment, and this seceding body in the common How could they say that any one of them was

it is proposed to validate by this first section council, if Congress does not interpose, will not entitled to vote? Certainly they could not. Rator in is not a return of the election made by the be obliged to do just what was done by a sim- Therefore all that this board did was not only man Bora election commissioners; but it is attempted to ilar interest in the Legislature of Pennsylvania a usurpation of power, but it was an outrage Aster of

supersede that regular and official and legal on a signal occasion at the time of the Buck upon the electors of the city of Washington formare

return by a supplemental paper, which was shot war; the seceding members, who set up, that they, without the slightest authority, withmade out by a part of the commissioners. under the lead of Mr. STEVENS, a House of out any color of law to sanction their proThat fact seems to have been overlooked in their own, were forced to give up their organ ceedings, should strike from the poll the necesthe debate.

ization and come into the regular body; the sary number to count off particular officers Now, sir, what I propose is, in drafting a dispute came to an end. Just so here; if Con- from the returns and count in others, and to President

law which shall apply not only to the present I gress does not interpose, if by a vote taken do this after these very men themselves had election, but to all future elections, the register | here it is shown that Congress will not inter- certified under the law the result of the election shall make out bis certificate from the official pose in behalf of either party to this dispute, and their duties had come to an end.

returos made to him by the commissioners of this affair will settle itself in twenty-four hours. It is not for me, sir, to describe the conduct ht to do? election; whereas, under the bill as it now It was got up, no doubt, with the intention of of these commissioners of election ; but there

stands, be is to make that return upon any | appealing to Congress and getting some new is one thing I can do; I can form an opinion of sludien "satisfactory evidence.". The very form of law by which a partisan advantage should be the attitude and position in which I should be vide that this first section exposes its impropriety. It gained and a decision be made in favor of || placed by voting for this bill which has been plumenda : is not proposed that the register shall make those who are departing from the laws which sent here in their interest. I should consider certificates upon the official returns filed with regulate the election.

myself disgraced by sanctioning any law to him under the law by the election commis- One word more and I will leave the subject. || patch up miserable election trick of this kind porno

sioners, but that he may make out his returns Mr. President, as already argued by the Sena- to enable certain persons in the common ing para upon any " satisfactory evidence” which may tor from Indiana, under the law the result of council of the city to possess the legal power

be furnished to him by those commissioners, | the election was to be certified by the com- if they please hereafter to purge the election, olumea - or by any part of them.

missioners who held it. They did, after count. or to transfer this dispute to a court of the he peut

Sir, this election was held; and after the ing the votes, go on and certify the result of District to undergo investigation there perhaps votes were counted, on the evening of the day the election, and the whole of the commis- for six months or a year, and meantime install of the election, it was announced that Mr. sioners acted in that proceeding, and when the rejected persons in office in the board of Given was elected mayor of the city, and that they had completed it their functions ended. common council and enable them to control

there was a Conservative majority in the com- They had no power to do anything more ex- the patronage of the city of Washington and horoby mon council, and, I believe, a tie in the cept, possibly, to transmit the papers after-place their favorites in office, or, at all events, dniu board of aldermen. After midnight, singularly ward. They might do that through a messen- to hold the other branch of the local legisla

enough, it was discovered that there was an ger. Then, I repeat, a part of the board under- ture, the board of aldermen, in check, and error in one of the wards, and the commis. took afterward to hold a judicial investiga- || control them in taking such action as they are sioners proceeded to correct that error, as it tion of the election, and get up a paper setting

entitled to take under the law of their organiza: is alleged, by which a majority for Mr. Given | aside some part of the vote which had been tion. was changed into a majority for Mr. Bowen. || polled. And here we are by act of Congress The PRESIDENT pro tempore. The ques. That was done after the first count, as I under. to sanction this proceeding, virtually to turn

tion is on the amendment of the Senator from stand ; and that result was reached, it is alleged, out the men who were regularly reported Pennsylvania. by correcting some error in the night. Whether elected in one of the wards, and to put their Mr. BUCKALEW called for the yeas and that was fair or not is not for me to say; but | opponents in and to organize the board, so that | nays; and they were ordered. for our present purpose we may assume that it when it comes to the investigation of the quali- Mr. BUCKALEW. This amendment simwas a fair proceeding and that it was an honest fications of those rejected voters, there can be ply provides that the register of the city shall correction of an error.

a decision obtained in favor of somebody or make out his certificate upon the official reBut sir, what do we have? The commis- of some interest.

turns made to him by the election officers sioners, and the whole of them acting together, Observe there is not the slightest evidence instead of "satisfactory evidence." made out a return of the election not only for before the Senate, although we are asked to Mr. WILLIAMS. I wish to make one sugthe board of aldermen, but for the board of pass this bill, that there was an illegal vote at gestion to the Senator. I am sure he sees the common council, and transmitted that return the election.' On the other hand, the presump

effect of this amendment, but it defeats the to the

mayor of the city, under the law. Upon tion is that these were legal votes, although bill. I presume every Senator sees that, because, that return there was a Conservative majority open to question and to investigation, of course, of course, one board of aldermen will claim that in the common council. The mayor, under if anybody chooses to raise an inquiry. The || certain returns are not regular, and the other the law, having received that return, issued a presumption is, that the registry was right, board will claim that they are regular, and it notice through the newspapers of the city, that the persons who made the registration, leaves the question just as we find it, and unless which was in the nature of a proclamation, Mr. Bowen himself being one of them, made we pass the bill as it stands we accomplish announcing the result, not only to the candi- an honest and proper enumeration of the per: nothing. dates, but to the public; and when the board sons in this city qualified to exercise the elect- The question being taken by yeas and nays, of aldermen and common councilmen were to ive franchise, and for five days before the elec- resulted-yeas 8, nays 29; as follows; convene, he transmitted to them, as I under: tion there was the opportunity to revise those YEAS-Messrs. Buckalew, Davis, Doolittle, Fowler, stand, these official returns which had been

Hendricks, McCreery, Patterson of Tennessee, and lists and to make them perfect and complete

Vickers--8. duly made to him by the commissioners of and exactly in accordance with this very law NAYS-Messrs. Anthony, Chandler, Cole, Conness, election. Then a part of the commissioners, which is now appealed to on the subject of Corbett, Cragin, Ferry, Harlan. Howard, Howe, 23 I said before, afterward made out a paper soldiers.

Morgan, Morrill of Maine, Morrill of Vermont, Nye.

Patterson of New Hampshire, Pomeroy, Ramsey, or a statement and sent it to the register.

It I say, then, that every presumption is in Ross, Sherman, Stewart, Sumner, Thayer, Tipton, was not a return of the election; it was a state. favor of the legality of the votes which were Van Winkle, Wade, Willey, Williams, Wilson, and ment by them with regard to the quality of

Yateg--29. received in that ward and which were undepi

ABSENT-Messrs. Bayard, Cameron, Cattell, Conkcertain of the votes alleged to have been sol. ably upon the registration list.

And observe, ling, Dixon, Drake, Edmunds. Fessenden, Frelingdier's votes, and upon that information, irregu- sir, that under the prior law, before this act huysen, Grimes, Henderson, Johnson, Morton, Norlar and unlawful, the register made out returns of this spring to which allusion is made, one

ton, Saulsbury, Sprague, and Trumbull--17. which were laid, or were attempted to be laid,

So the amendment was rejected. year's residence in this city was required, not before the legislative body when they convened. of citizens merely but of soldiers also- of all

Mr. HENDRICKS. In the fourth section, What is the object?' There is no doubt || classes. Consequently, these registrars, of

after the word “trial,” in the twelfth line, Í about the question of law. The regular return whom Mr. Bowen was one, must only have

move to insert the words “and either party of the election was sent to the mayor of the registered those persons in the military ser:

may have a trial by jury.' city and was proclaimed, and that official re- vice who had been residents of the city of

The amendment was rejected. torn was sent to the boards of aldermen and Washington for one year before. They did Mr. HENDRICKS. I move to strike out of councilmen when they met, and there was register them, and their names were put up the following words in the third section, fifth an organization upon those clearly official, reg. for public inspection, and they remained there and sixth lines, and the action of said court ular, lawful papers. But there was a seces- after the registration lists were revised. There in relation thereto shall he final." I will state sion, a bolt, by a portion of the members of is, therefore, no reason for the declaration, to the Senate that I think the amendment the common council, who, upon notices merely

which is made here with such confidence, that should be adopted. The proceeding contemwhich the register had sent to particular per- those votes were illegal.

plated in this section is summary and ought not sons in one of the wards, attempted to admit And, sir there is no pretense that the elec- to be final. It provides for placing the party in and to use those men as members of the board, tion officers did investigate the question of office upon the certificate alone, and does not and they set up a separate organization, or

their right to vote at all. They had no right propose to go into the merits of the controversy, attempted to set up one, that cannot endure

under the law to do it when the election was if controversy shall exist, and upon that trial, legal investigation or the action of the common held. There is no pretense that they attempted when the case is to be decided exclusively by the council itself and of the board of aldermen, because the control of the board of aldermen

to do it, certainly after the election was over. certificate given by the register, the fincing or

They entered into no examination; they called decision of the court ought not to be final. I has passed from the bolting party and is in the

no witnesses with reference to these voters. will read the section : line of regular and lawful action at this mo- They did not examine the voters themselves. Sec. 3. And be it further enacted, That the supreme

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