is nothing conflicting in the testimony of this ex-rebel congressman and this Federal captain.

The contestee, Mr. Young, is fully identified in the testimony as the same person alluded to by the witness Greenup Nickell. That witness (p. 17, Mis. Doc. No. 13) testifies:

Question. Have you seen him since, and if so, state the circumstances?

Answer. I don't know whether I have ever seen him or not; but at February court, just previous to the May election last, I was in court in the courthouse at Moorehead, and while the court was going on I heard some one speak out, 'How are you, Judge Young?' I was at once reminded of the same expression I had heard at Owingsville, and turned to see who it was. Tom Hayes, who had been a captain in the rebel army, was standing near, and I took him to be the man. from the voice, who then addressed the man he called Judge Young. I was not acquainted myself with Judge Young, but when I saw him there in the court-house at Moorehead, I took him to be the same I had seen at Owingsville, and believe that he was the same man. These are the only two times I have seen Judge Young, if this was him."

On page 40, same book of testimony, another witness testifies:

"There has not lived any other man called Judge Young in this county, except John D. Young, the party to this contest," &c.

On page 45, same book, another witness testifies:

John D. Young is the only man by the name of Young in this county who has been a judge. He was judge of the Bath county court.'

The testimony of Dr. John H. Williams, on page 31, Mis. Doc. No. 13, proves that Mr. Young gave "aid and comfort" to the enemies of the Government by associating with rebel soldiers. He testifies:

"I have been acquainted with John D. Young some ten or fifteen years, and do state that during the rebellion I saw John D. Young on Beaver creek and at Thomas Greenwald's, who confessed to be a captain in the rebel army; and I saw Mr. Young pass in toward Blackwater, where I was informed that there was a rebel camp on Blackwater; and I was told by the rebel soldiers that John D. Young was engaged in recruiting soldiers for the rebel army; and I never heard any person dispute his being a sympathizer with the rebels until he became a candidate for Congress. And I further state that I saw him in company with rebel soldiers that claimed to belong and were with him in last raid in Kentucky, and, so far as I could judge, John D. Young seemed to be agreeably situated when with those soldiers; and I was informed by the rebel soldiers that John D. Young was an officer in their army; this I was told by Jacob Edwards and two of the Sexton boys, who were in the rebel army; and I saw Mr. Young passing some two or three times, and I think oftener."

There is one other point in this evidence to which I ask the attention of the House, and I will pass from it.

In 1861 there was a gathering of rebels at Prestonburg, Kentucky. They gathered there at a rendezvous for the purpose of organizing a regiment for the rebel service. While they were there gathered John D. Young was at that place. It is alleged by him, and there is proof tending to show it, that he went there for the purpose of dissuading a brother-in-law, I believe, from joining the rebel regiment. But it is in proof that when he went there, understanding fully the design of that gathering, and that a rebel regiment was to be formed, he took with him a minie rifle. It is in proof that arms were very scarce among the rebels at that point. It is further in proof that when Young left Prestonburg he said to one of the sons of Joshua Ewing, who was a Union man, whose son Young had threatened to have with him in South Carolina to fight the Yankees, who was then there for the purpose of joining that rebel organization, and who did join it, "There is a good gun; take care of it;" that Ewing took the gun, carried it with him into the rebel army, and when he left the rebel service gave it to his cousin, who continued in the army. He never was asked for the gun by Young; he never was called to account for it at all. The gun passed from Young to Ewing, a rebel soldier, manifestly with the intent of supplying what was then the greatest need of the rebel soldiers gathered there, arms to fight against the Government.

Mr. BECK. I know the gentleman does not desire to misstate the testimony.

Mr. COOK. Certainly not.

Mr. BECK. I know you do not. You will find by the testimony that it is not shown that

Judge Young carried that gun there at all; and it is expressly proved by young Ewing himself that he was not in the rebel army, did not go into the rebel army then, and did not join it for more than a year afterward.

Mr. KERR. In the September following. Mr. BECK. Yes, sir; in the September following. I know the gentleman does not wish to misrepresent anything.

Mr. COOK. I will read the testimony exactly.

Mr. BECK. You will find that he was not in the rebel army, and did not join it for some time after.

Mr. COOK. I read the proof precisely as it is reported by the committee.

"Henry H. Ewing sworn and examined. "To Mr. McKEE:

"I live in Owingsville, Kentucky. I am acquainted with Mr. Young. I do not know anything about his disloyalty. I believe he was a southern sympathizer. He was at Prestonburg when there were a parcel of men there collected to be organized into the confederate service. They were not organized at the time. I have no knowledge of Mr. Young having been a candidate for an office in that organization. I do not know that he had a gun there. He showed me a gun standing in the porch of the House where he was staying, and asked me to take care of it. He said, There is a good gun; take care of it.' He never spoke to me about going into the rebel army.

To Mr. KINKEAD:

"I am a son of Mr. Joshua Ewing. I and my two brothers were in the confederate army. Mr. Young had nothing to do with inducing me to join the confederate army. I understood at the time that Mr. Young was at Prestonburg that his object was to get his brother-in-law to go home. "To Mr. SCOFIELD:

"I took care of the gun for three or four weeks, and then, when I was coming home. I gave it to a cousin of mine in the army, and I think he sold it. I afterward went back to the army, and stayed till the surrender. The gun was a minie rifle. I do not know why Mr. Young brought it there. He never inquired of me what became of it. I never told him.

"Guns were scarce there at the time. There were no guns there of any consequence. To Mr. Cook:

"It was understood for what purpose the men were there in camp; that they were preparing to go into the southern army.'

MESSAGE FROM THE PRESIDENT.

A message was received from the President, by Mr. MOORE, his Private Secretary, informing the House that the President had returned, with objections thereto, the bill (H. R. No. 1059) to admit the State of Arkansas to representation in Congress.

Mr. COOK resumed the floor.

Mr. FARNSWORTH. Before the gentleman proceeds I ask him to yield to let the veto message from the President on the Arkansas bill be presented.

Mr. COOK. I yield for that purpose.

ADMISSION OF ARKANSAS TO REPRESENTATION.

The SPEAKER. The Chair lays before the House the following message from the President of the United States returning to this House, in which it originated, a bill with his objections.

The Clerk read the message, as follows: To the House of Representatives:

I return without my signature a bill entitled "An act to admit the State of Arkansas to representation in Congress."

The approval of this bill would be an admission on the part of the Executive that the act for the more efficient government of the rebel States, passed March 2, 1867, and the act supplementary thereto, were proper and constitutional. My opinion, however, in reference to these measures has undergone no change, but, on the contrary, has been strengthened by the results which have attended their execution.

Even were this not the case, I could not consent to a bill which is based upon the assumption either that by an act of rebellion of a portion of its people the State of Arkansas seceded from the Union, or that Congress may, at its pleasure, expel or exclude a State from the Union, or interrupt its relations with the Government by arbitrarily depriving it of representation in the Senate and House of Representatives. If Arkansas is a State not in the

Union, this bill does not admit it as a State into the Union. If, on the other hand, Arkansas is a State in the Union, no legislation is neces sary to declare it entitled "to representation in Congress as one of the States of the Union." The Constitution already declares that each State shall have at least one Representative;" "that the Senate shall be composed of two Senators from each State;" and "that no State without its consent shall be deprived of its suf frage in the Senate."

แ

That instrument also makes each House "the judges of the elections, returns, and qualifications of its own members," and therefore all that is now necessary to restore Arkansas in all its constitutional relations to the Government is the decision by each Honse upon the eligibility of those who, presenting their credentials, claim seats in the respective Houses of Congress. This is the plain and simple plan of the Constitution; and believing that had it been pursued when Congress assembled in the month of December, 1865, the restoration of the States would long since have been completed, I once again recommend that it be adopted by each House in preference to legislation which I respectfully submit is not only of at least doubtful constitutionality, and therefore unwise and dangerous as a precedent, but is unnecessary, not so effective in its operation as the mode prescribed by the Constitution, involves the additional delay, and from its terms may be taken rather as applicable to a Territory about to be admitted as one of the United States than to a State which has occupied a place in the Union for upward of a quarter of a century.

The bill declares the State of Arkansas enti. tled and admitted to representation in Congress as one of the States of the Union upon the following fundamental condition:

"That the constitution of Arkansas shall never be so amended or changed as to deprive any citizen or class of citizens of the United States of the right to vote who are entitled to vote by the constitution herein recognized, except as a punishment for such crimes as are now felonies at common law, whereof they shall be duly convicted under laws equally applica ble to all the inhabitants of said State: Provided, That any alteration of said constitution, prospective in its effect, may be made in regard to the time and place of residence of voters."

I have been unable to find in the Constitution of the United States any warrant for the exer cise of the authority thus claimed by Congress. In assuming the power to impose a "fundamental condition upon a State which has been duly admitted into the Union on an equal footing with the original States, in all respects whatever, Congress asserts a right to enter a State as it may a Territory, and to regulate the highest prerogative of a free people-the electThis question is reserved by the Constitution to the States themselves, and to concede to Congress the power to regulate this subject would be to reverse the funda mental principle of the Republic, and to place in the hands of the Federal Government (which is the creature of the States) the sovereignty which justly belongs to the States or the people, to the true source of all political power by whom our Federal system was created, and to whose will all is subordinate.

ive franchise.

The bill fails to provide in what manner the State of Arkansas is to signify its acceptance of the fundamental condition" which Congress endeavors to make unalterable and irrev ocable. Nor does it prescribe the penalty to be imposed should the people of the State amend or change the particular portions of the constitution which it is one of the purposes of the bill to perpetuate, but leaves them in un certainty and doubt as to the consequences of such action, when the circumstances under which this constitution has been brought to the attention of Congress are considered. It is not unreasonable to suppose that efforts will be made to modify its provisions, and especially those in respect to which this measure prohib its any alteration. It is seriously questioned whether the constitution has been ratified by a majority of the persons who, under the act of March 2, 1867, and the acts supplementary

thereto, were entitled to registration and to vote upon that issue. Section ten of the schedule provides that

"No person disqualified from voting or registering under this constitution shall vote for candidates for any office, nor shall be permitted to vote for the ratification or rejection of the constitution at the polls herein authorized."

Assumed to be in force before its adoption, in disregard of the law of Congress, the constitution undertakes to impose upon the elector other and further conditions. The fifth section of the eighth article provides that "all persons, before registering or voting," must take and subscribe an oath which, among others, contains the following clause:

"That I accept the civil and political equality of all men, and agree not to attempt to deprive any person or persons, on account of race, color, or previous condition, of any political or civil right, privilege, or immunity enjoyed by any other class of men."

It is well known that a very large portion of the electors in all the States, if not a large majority of all of them, do not believe in or accept the political equality of Indians, Mongolians, or negroes with the race to which they belong. If the voters of many of the States of the North and West were required to take such an oath as a test of their qualification, there is reason to believe that a majority of them would remain from the polls rather than comply with its degrading conditions.

How far and to what extent this test-oath prevented the registration of those who were qualified under the laws of Congress, it is not possible to know; but that such was its effect, at least sufficient to overcome them all and give a doubtful majority in favor of this constitution, there can be no reasonable doubt.

Should the people of Arkansas, therefore, desiring to regulate the elective franchise so as to make it conform to the constitutions of a large proportion of the States of the North and West, modify the provisions referred to in the "fundamental condition," what is to be the consequence? Is it intended that a denial of representation shall follow? And if so, may we not dread, at some future day, a recurrence of the troubles which have so long agitated the country? Would it not be the part of wisdom to take for our guide the Federal Constitution, rather than resort to measures which, looking only to the present, may in a few years renew, in an aggravated form, the strife and bitterness caused by legislation which has proved to be ill-timed and unfortunate?

ANDREW JOHNSON. WASHINGTON, June 20, 1868.

The SPEAKER. The question under the Constitution is, Will the House, on reconsideration, agree to the passage of this bill?

Mr. STEVENS, of Pennsylvania. I move the previous question on that.

Mr. ROBINSON. Is not the privileged question which has been up, the contestedelection case, the matter now in order, and can we not insist on going on with that question?

The SPEAKER. As the Constitution is higher in authority with the House than the rules, this question is higher in authority than the question which the House has been considering the contested-election case.

Mr. ROBINSON. I do not remember that part of the Constitution, sir.

The SPEAKER. If the gentleman will read the Constitution and the rules of the House together he will find that the Chair is correct.

Mr. STEVENS, of Pennsylvania. It would be very well for the gentleman to begin and read it through.

The SPEAKER. The rule can be found on page 188 of the Digest.

Mr. STEVENS, of Pennsylvania. I object to its being read. Let the gentleman read it himself.

The SPEAKER. This is a privileged question under the Constitution, which is higher in authority than the rules of the House.

The previous question was seconded and the main question ordered.

The SPEAKER. The Constitution requires

that this question shall be taken by yeas and

nays.

The question was then taken; and there were-yeas 111, nays 31, not voting 48; as follows:

YEAS-Messrs. Allison, Ames, Anderson, Delos R. Ashley, Bailey, Banks, Beaman, Beatty, Benjamin, Benton, Bingham, Blaine, Blair, Boutwell, Buckland, Butler, Cake, Churchill, Reader W. Clarke, Sidney Clarke, Cobb, Coburn, Cook, Cornell, Covode, Cullom, Delano, Donnelly, Driggs, Eckley, Eggleston, Ela, Eliot, Farnsworth, Ferriss, Ferry, Fields, Garfield, Griswold, Harding, Hawkins, Higby, Hill, Hooper, Chester D. Hubbard, Hulburd, Ingersoll, Jenckes, Judd, Julian, Kelsey, Ketcham, George V. Lawrence, Lincoln, Loan, Logan, Loughridge, Lynch, Mallory, Marvin, Maynard, McCarthy, MeClurg, Mercur, Moore, Moorhead, Morrell, Mullins, Newcomb, O'Neill, Paine, Peters, Pike, Pile, Plants, Poland, Polsley, Pomeroy, Price, Robertson, Sawyer, Schenck, Scofield, Shanks, Shellabarger, Smith, Spalding, Starkweather, Aaron F. Stevens, Thaddeus Stevens, Stewart, Stokes, Taffe, Taylor, John Trimble, Trowbridge, Twichell, Upson, Van Aernam, Van Wyck, Ward, Cadwalader C. Washburn, Henry D. Washburn, William B. Washburn, Welker, William Williams, James F. Wilson, John T. Wilson, Windom, Woodbridge, and the Speaker-111.

NAYS Messrs. Adams, Archer, Axtell, Beck, Boyer, Brooks, Cary, Eldridge, Fox, Getz, Glossbrenner, Golladay, Grover, Haight, Holman, Hotchkiss, Johnson, Jones, Kerr, Knott, McCormick, Morrissey, Mungen, Niblack, Pruyn, Robinson, Sitgreaves, Taber, Lawrence S. Trimble, Van Trump, and Woodward-31.

NOT VOTING-Messrs. Arnell, James M. Ashley, Baker, Baldwin, Barnes, Barnum, Bromwell, Broomall, Burr, Chanler, Dawes, Dixon, Dodge. Finney, Gravely, Halsey, Hopkins, Asahel W. Hubbard, Richard D. Hubbard, Humphrey, Hunter, Kelley, Kitchen, Koontz, Laflin, William Lawrence, Marshall, McCullough, Miller, Myers, Nicholson, Nunn, Orth, Perham, Phelps, Randall, Raum, Ross, Selye, Stone, Thomas, Van Auken, Burt Van Horn, Robert T. Van Horn, Elihu B. Washburne, Thomas Williams, Stephen F. Wilson, and Wood-48.

During the call of the roll the following announcements were made:

Mr. GETZ. I desire to state that my colleague, Mr. RANDALL, is paired with my colleagues, Mr. MYERS and Mr. STEPHEN F. WIL

way.

Mr. RAUM. My colleague, Mr. MARSHALL, is absent by leave of the House. Before leaving I paired with him on this bill. He would be against the bill and I for it.

Mr. ROBINSON. My colleague, Mr. BARNES, is absent on leave. He would vote against this bill if he were here.

Mr. BOYER. My colleague, Mr. VAN AUKEN, is absent on leave. If he were present he would vote against this bill.

After the conclusion of the call of the roll, The SPEAKER said: On the question, "Will the House on reconsideration agree to the passage of an act to admit the State of Arkansas to representation in Congress?" the yeas are 111, and the nays 31. Two thirds having voted in the affirmative, the bill has again passed the House, and will be transmitted, with the message of the President, to the Senate for their reconsideration.

Mr. ROBINSON. Is it in order now to move a reconsideration of the vote just passed? The SPEAKER. It is not, according to the Digest.

Mr. ROBINSON. As I was put down by the Constitution, I do not want to be now put down by the Digest.

The SPEAKER. The rule, to be found on page 188 of the Digest, is as follows:

"A vote on the passage of a vetoed bill cannot be reconsidered."

The gentleman from Illinois [Mr. Cook] is now entitled to the floor.

Mr. ROBINSON. Will the gentleman yield to me for a moment to make an explanation? Mr. COOK. I cannot yield for any explanation.

COVINGTON AND OHIO RAILROAD.

Mr. POLSLEY. Will the gentleman yield to me for a moment to introduce a bill for reference?

Mr. COOK. Certainly.

Mr. POLSLEY, by unanimous consent, introduced a bill (H. R. No. 1282) relating to the Covington and Ohio railroad, and its establishment as a post route and military road of the United States; which was read a first and second time, and referred to the Committee on Roads and Canals.

Mr. POLSLEY. I ask that the bill, with the accompanying memorial, be printed. The motion to print was agreed to.

ELECTION CONTEST-M'KEE VS. YOUNG. The House then resumed the consideration of the contested-election case of McKee vs. Young, ninth congressional district of Kentucky; on which Mr. Cook was entitled to the floor.

Mr. COOK. I was in error in saying that the evidence shows that Mr. Young himself took this gun to the rebel rendezvous; but the evidence is that the gun was there; that there Young assumed to control it; that he pointed it out to Ewing; told him it was a good gun, and that he must take care of it; that Ewing took the gun with him into the rebel army, and was never asked for it afterward; and the gentleman from Kentucky [Mr. BECK] was in error in saying that there was no proof that Ewing was in the rebel army. He stated himself:

"I and my two brothers were in the confederate army. I took care of the gun for three or four weeks, and then, when I was coming home, I gave it to a cousin of mine in the army, and I think he sold it. I afterward went back to the army and stayed till the surrender."

Now, sir, the proof is that at this encampment where men were being enlisted for the rebel army there was a minie rifle over which Mr. Young exercised control. Mr. Ewing took charge of the gun; he took it and kept it. Under all these circumstances it is perfectly apparent that this gun was furnished by Mr. Young for the rebellion to supply a need in the rebel camp for offensive weapons.

I pass now to refer to the pointing out to a squad of rebel cavalry where a Union soldier might be captured. The only question that can be raised is as to the identity of the man who pointed out the house where a Union soldier was to the rebel squad. The witness testifies that when they came into the town of Owingsville, the place of Judge Young's residence, this man met them there. The witness says that he pointed out the house where the Union soldier was, and he told the rebel soldiers to go for him. Some time afterward he was seen by the witness in court and recognized by him. The question of identity is the most material one on this point, and it being in the power of Judge Young when the committee was in Kentucky to present himself before this witness and ask whether he was the man or not, and not having done so, it seems to me that the proof is conclusive that it was Judge Young who pointed out this house where this Union soldier was captured.

I pass now from this point and this resolution. If the rule adopted by the House is not to be reversed, that any man who by act or speech gave aid and comfort to the rebellion, and under such circumstances as to show it was designed to give aid and encouragement to the rebellion, shall not be entitled to take a seat upon this floor, if that rule is not to be done away with and the decision, then I think it certain that this first resolution reported by the committee must be adopted.

I now come to the other resolutions. I am aware there may be honest difference of opiuion as to the conclusions to which the commit

tee have arrived. I will give briefly the reasons which induced the committee to come to the conclusion that Mr. McKee was entitled to the seat from the ninth congressional district of Kentucky. The official majority returned for Mr. Young was 1,479 votes. From the testi

mony think it is clear that of these 625 votes were cast by men who had been soldiers in the rebel army. The condition of these soldiers at that time was this: the rebel armies had surrendered to the Union armies, and upon the condition that the company and regimental officers signed paroles for their men and the men were allowed to return to their homes, there to be unmolested by the United States authorities so long as they remained faithful to their paroles and obeyed the laws where they resided. This is a part of the public history of the country. These men, then, were in the condition of paroled prisoners of war. They were not included in the amnesty proclamation of the President. Prior to this election, on the 29th of May, 1865, the President of the United States issued an amnesty proclamation specially excepting from such amnesty, under the tenth exception, all men in the rebel army who had been citizens of States in which loyal State governments had not been overthrown. These men, then, were paroled prisoners of war, specially exempted from amnesty in the Presi dent's proclamation. They were like the rebel soldiers in the field, excepting the fact that they had been captured.

Mr. ADAMS. Will the gentleman allow me to ask him a question?

Mr. COOK. Certainly.

Mr. ADAMS. The ground upon which the gentleman places himself is that these soldiers are paroled prisoners of war, and especially excepted from this amnesty.

Mr. COOK. I do not think that is quite a fair statement of it.

Mr. ADAMS. That is the way I understood it that they were in the condition of paroled soldiers excepted from amnesty. If they had not been excepted from amnesty they would not be in the condition of paroled prisoners. Is that your position?

Mr. COOK. My position is this: that having been surrendered on parole they were in the condition of paroled prisoners of war; that their condition had not been changed by any amnesty proclamation.

Mr. ADAMS. That is what I want to come at. You say they were in the position of paroled prisoners of war because they had surreudered and gone home. Now, I desire to ask if there is any proof that any considerable portion of the men who are charged with being rebels were in the war at the close of it, or were included in the terms of surrender. On the contrary, is there not an absence of proof to show that they were in the war at its close and that they were under the terms of surrender?

Mr. COOK. The proof is that these men were soldiers in the rebel army. In relation to many of them the time is identified when they were such rebel soldiers, but in relation to many others it is not so identified by the proof. But if they were soldiers in the rebel army and residents of the State of Kentucky who had left the State for the purpose of joining the rebel army, they were either men who had been surrendered by the officers of the rebel army at the time the surrender was made, or there is no proof whatever that they had left the army and had changed their condition as rebel soldiers. If, indeed, they were citizens of Kentucky, and had left that State for the purpose of joining the rebel army, then I insist they came within the provisions of the act of Congress which declares that where men desert from the service of the United States, or go away so as to avoid the draft, they are considered as having waived their right of citizenship in the United States. In either event they were not entitled to vote at this election.

It seems to me absurd to say that men who were fighting to destroy this Government might be shot on the field of battle, might be made prisoners of war and confined in prison for the

purpose of preventing their destroying the Government by force of arms, and yet that it is impossible to prevent their voting to accom plish the same object. I desire to submit this question fairly to the House. The proof in relation to the matter is that these men were at some time or other during the continuance of the war rebel soldiers.

Mr. ADAMS. I do not wish to be troublesome, but a question occurs to me here. The gentleman remarked

Mr. COOK. I yield only for a question. Mr. ADAMS. It is necessary to preface it in order that it should be understood. The gentleman stated that he could not see the dif ference, inasmuch as the war was over, in their condition now and when they were in the army except that they had been captured. I will ask the gentleman if he does not know that Congress, wherever it professes to have the right to regulate the question of suffrage, has not undertaken to deny to rebels the right to vote simply because they were rebels? Has it been the policy of Congress, in States where they have the control of this question, to deny to rebels the right to vote simply because they were rebels except such as were officers above a certain rank?

Mr. COOK. I understand it to have been the policy, first of the proclamation of the President, and then of the reconstruction acts of Congress, to prescribe who may vote in the organization or reconstruction of those State governments; that is, in the preliminary proceedings therefor.

Mr. ADAMS. I will ask the gentleman if he does not think the vote to establish or institute a form of government is just as important and as great an act of sovereignty as a people can perform; and if it does not require as full and as complete an amnesty, and as full and complete a removal of disabilities for the purpose of voting upon that subject, as for the purpose of voting for the government of a State reformed and reëstablished?

Mr. COOK. I will answer that question by saying that I do not believe that a rebel soldier, captured or otherwise, whether paroled or not, ought to vote in the election of men who are to make laws for the nation in this House; and that if the rule which the House has adopted be right to refuse seats here to men who have been engaged in armed hostilities to this Government, it is right to reject the votes of men who have been endeavoring by force of arms to overthrow the Government. That is my view of the subject.

Now, it is proven that 625 men who voted for Mr. Young were rebel soldiers; and this proof embraces but a portion of the district. It is alleged by the contestant that it was impossible to take proof through the whole of the district in relation to rebel soldiers, because he could not get the officers before whom the notices were given, or any officers in some portions of the district, to take the proof. Eight hundred and eighty-three of the majority given for Mr. Young in this district was given in precincts where some one or more of the officers of the election had been a rebel soldier. I understand the law of Kentucky to be that rebel soldiers were disqualified from acting as judges of election in any manner. That is my understanding of the law. I will quote the law upon which I rely as sustaining this view. Before I do that, however, I wish to refer very briefly both to the decision of the Supreme Court of the United States and the decision of the supreme court of the State of Kentucky as to what the status of these rebel soldiers was who were not included in any act of amnesty, nor included in any law removing disabilities.

The Supreme Court of the United States, in the celebrated prize cases, uses this language in relation to these men:

"They have cast off their allegiance and made war on their Government, and are none the less enemies because they are traitors.'

Company, which I hold in my hand, in speaking of Morgan's band-a band raised in Kentucky, commanded, as I understand, by an officer of the State of Kentucky, and in all respects standing on the same ground as men who had served in the rebel army-used this language:

"Public policy, and consequently the law, holds common carriers to a peculiar responsibility extremely stringent, admitting no excuse for the loss of goods except an act of God or of a public enemy which could not by any proper care or available form have been averted. No other human force than that of a public enemy will exonerate the carrier, because otherwise he might fraudulently muster or combine with a force to rob himself. The only question in the case is, was Morgan's band, in the technical sense, a public enemy, and the answer depends on whether the strife in which they were fighting is a civil war. War is either international or civil, foreign or domestic. Insurrection, however violent or formidable, is not war. Civil war is preceded by insurrection, which, however magnified and matured into war in its legitimate sense, and when so characterized, the parties are belligerents and respectively entitled to belligerent rights. And history records no civil war more flagrant or gigantic than that in which our country is now engaged. If this be not war what is war, and when or where did it ever rage and desolate and destroy? It has been so treated at home and abroad by our own Government in all its Departments as well as by foreign Governments, and if it be war now it was as certainly war, and as much war, on the 11th of May, 1862."

Both by the decision of the Supreme Court of the United States and by the decision of the supreme court of Kentucky these men are held to be public enemies, and the question, it seems to me, presents itself whether men who have been enrolled in the armies of the public enemies of the United States are legal voters to select the law-makers of the Government, the officers of the Government, at a time when they have not in any manner received the benefit of any amnesty or any law removing disa bilities? That is the simple question which I desire to present to the House.

Mr. JONES. Will the gentleman yield to me for a question?

Mr. COOK. Yes, sir.

Mr. JONES. I desire to ask him if he is not aware that the Kentucky Legislature passed a law in the year 1865 granting an amnesty to all persons who joined in the rebellion?

Mr. COOK. No, sir; I am not. I am aware that they repealed the law which formerly existed on the statute-book.

Mr. JONES. They passed a law in 1865 that all persons who joined in the rebellion should be restored to their rights as citizens.

Well, then, I would ask the gentleman another question. The Constitution of the United States says that electors for Representatives in Congress shall have the same qualifica tions as electors for the most numerous branch of the State Legislature. That being the fact, had not the Legislature of Kentucky a right to grant that amnesty and to say who shall be

voters?

Mr. COOK. Mr. Speaker, if the laws of Kentucky provided that the whole confederate army which was in Kentucky, composed in considerable part of the residents of Kentucky, should have the right to vote in electing mem bers of this House, I do not think that this House ought to recognize that right, and that the public enemies of the United States ought not to control the Government of the United States.

Mr. JONES. That may be the gentleman's opinion, but I ask him to look to the Constitution of the United States. The only provis ion in the Constitution in regard to the qualifi cation of electors for Representatives in the Congress of the United States is that which I have referred to.

Mr. COOK. I cannot yield for an argu

The supreme court of the State of Ken

right to protect itself which authorized the Government to send troops into the State of Kentucky, not upon the call of her Governor, not upon the call of her Legislature, to subdue an armed rebellion against the United States by capturing and destroying the rebel armies upon the soil of Kentucky. The same right exists to prevent the destruction of the Government by the election of officers who shall control the Government for the same ends.

The Constitution provides, in the second section of the first article, that

"The House of Representatives shall be composed of members chosen every second year by the people of the several States."

Mr. COOK. It is incompetent for the Legislature of the State of Kentucky to make electors of men who are not people of the State of Kentucky; and if any persons are public enemies they are not people of Kentucky, not a part of the body-politic and public enemies at the same time.

Mr. JONES. Then I would ask the gentleman to show me any law of Congress which provides that these gentlemen shall not vote?

Mr. COOK. I decline to yield further. I will give the gentleman full opportunity to make his speech. I hold that armed enemies of the Government in Kentucky are not people of the State of Kentucky within the meaning of the Constitution. And these men are, by the decision of the Supreme Court of the United States, and of the supreme court of the State of Kentucky, public enemies of the Government. I will now refer to the laws of the State of Kentucky, which I think disqualify these enemies of the Government from being judges of election. In Myers's Supplement, page 456, is the following:

An Act to amend section one, article three, chapter thirty-two, title "Elections," of the Revised Statutes.

Be it enacted by the General Assembly of the Commonwealth of Kentucky, That hereafter, so long as there are two distinct political parties in this Commonwealth, the sheriff, judges, and clerk of election, in all cases of election by the people under the Constitution and laws of the United States, and under the constitution and laws of Kentucky, shall be so selected and appointed as that one of the judges at each place of voting shall be of one political party, and the other judge of the other or opposing political party: and that a like difference shall exist at each place of Voting between the sheriff and clerk of elections: Provided, That there be a sufficient number of the members of each political party resident in the several precincts as aforesaid to fill said offices. And this requirement shall be observed by all officers of this Commonwealth who have the power to appoint any of the aforesaid officers of election, under the penalty of a fine of $100 for each omission, to be recovered by presentment of the grand jury.

On

That act was passed February 11, 1858. the 15th of March, 1862, the following act was passed:

An act to amend an act entitled "An act to amend section one, article three, chapter thirty-two, title Elections, of the Revised Statutes," approved February 11, 1858.

SEC. 1. That in construing the act approved February 11, 1853, to which this is an amendinent, those who have engaged in the rebellion for the overthrow of the Government, or who have in any way aided, counseled, or advised the separation of Kentucky from the Federal Union by force of arms, or adhered to those engaged in the effort to separate her from the Federal Union by force of arms, shall not be deemed one of the political parties in this Commonwealth within the provisions of the act to which this is an amendment.

SEC. 2. This act to take effect from and after its passage.

Mr. JONES. Will the gentleman yield to

me?

Mr. COOK. Not now.

Mr. JONES. I want to read an act passed by the Legislature in 1865.

Mr. COOK. I am fàmiliar with that law, and the gentleman can read it when he comes to speak.

I understand that the law which I have just

read provides that judges of election shall not be selected from those who were engaged in the rebellion for the overthrow of the Government, or who in any way aided, counseled, or advised the separation of Kentucky from the Union by force of arms, or adhered to those engaged in the effort to separate the State from the Federal Union by force of arms. That constitutes the disqualification.

And the rule has been well settled that where an officer of election is disqualified from holding the office, that election is invalid. The rule is different where the judge selected is competent to hold the office, but has not been qualified according to the forms of law. But if the judge or clerk or sheriff of the election is disqualified by the law from holding the office, it is precisely the same in principle as though the election was held without any officer whatever.

There are numerous authorities upon this question. It has been repeatedly settled in this House. I will refer to the authorities without reading them particularly. The first

case is that of Eastman vs. Scott, in the first volume of Contested Election Cases, page 275, in which that rule was held. The same rule was held in another case, and the same rule was held during the present session in the case of Delano vs. Morgan, which has been decided and approved by the House. In the case of Bennett vs. Chapman, of Nebraska, this same rule was also held. I will now read from the Contested Election Cases, from 1834 to 1865, page 212, Bennett vs. Chapman :

"Persons assumed to act as judges of election and clerks were appointed without the requirements of law. This is quite sufficient of itself, according to well-settled principles repeatedly established by this House for the rejection of the entire poll at Archer. In the case of James Jackson vs. Anthony Wayne, of Georgia, first session of Second Congress, it was decided by this House that when the law regulating the election required that three magistrates should preside at the election, a return by three persons, two of whom were not magistrates, was defective. The right of suffrage, great and inestimable as it may be, is nevertheless a right regulated and qualified by law. Indeed, it can only be properly exercised in conformity to the requirements of law; without these it would soon cease to be valuable."

I hold, therefore, the law to be well settled that where persons acted as officers of election who were disqualified by the law from holding that office, the entire poll where such officers officiated should be rejected. Such a poll has no more authority than if it were held by officers who were non-residents or not citizens of the United States. It gives no validity to the election. But I will not discuss this ques tion at any length at present.

Mr. BECK. I ask the gentleman how he answers the provisions of two statutes of Kentucky, which I ask permission to read, as they First, the act of December 19, are short.

1865, provides:

"That an act entitled 'An act to amend the fifteenth chapter of the revised statutes entitled "Citizens, Expatriation, and Aliens," passed March 11,1862, be and the same is hereby repealed, and all persons who may have lost any constitutional, legal, or other right or privilege by the operation of said act shall be and are hereby restored to the full and free use and enjoyment of the same as completely as if such act had never been passed; and this act shall be a bar to any prosecution or indictment growing out of said act.'

The other act, passed January 13, 1866, provides that the power to pardon persons who have committed treason is vested in the General Assembly, and that all persons who have at any time before committed treason against the Commonwealth shall be absolved from all pain sand penalties.

Mr. COOK. I cannot yield further. I understand that repealed an act different from the one the gentleman has stated. It applied to the act I hold in my hand, an act in reference to the expatriation of citizens, and it does not refer to the act I have quoted. The act I quoted was the act of March, 1862, and is not the act repealed by the act quoted by the gentleman from Kentucky.

Now, if you reject the votes of men who had been in the rebel army, if you throw out the votes taken and certified by the men disquali fied by the law of Kentucky from acting as

officers of election, then Mr. McKee is entitled to a seat upon this floor by a majority of fortyone votes. The whole question as to the right of Mr. McKee to a seat, in my opinion, turns upon the decision of the two points:

First. Can a man be elected to a seat in this House by the votes of soldiers of the rebel army? and, second, can votes be counted which were taken and certified by men who were also rebel soldiers, who, by the laws of Kentucky, are disqualified from acting as officers of election? The decision of these questions by the House must determine the right of Mr. McKee to the seat claimed by him.

Mr. Speaker, before I sit down I move the following resolution, that the contestant may be heard in this case:

Resolved, That Samuel McKee, contestant in the case now being considered, be permitted to address the House.

Mr. UPSON. Under the rules of the House. Mr. COOK. I accept that as a modification of my resolution.

The resolution, as modified, was adopted.

Mr. KERR. Mr. Speaker, before I proceed to consider the last report which has been laid upon our tables from the Committee of Elections in this case, I desire briefly to reply to some positions assumed by my colleague on the committee, in his remarks this morning, because they seem to be somewhat disconnected from the other part of the subject.

It is said, in the first place, that Mr. Young, who received a majority of 1,479 votes in the race for election to Congress in this ninth district of Kentucky, is not a loyal man, and therefore ought not to be allowed to take the oath required by the act of 1862. In the minority report, which I had the honor, in the first instance, to submit to this House in reference to this case, I discussed this branch of the case at some length and examined in a spirit of fairness the evidence touching this point. I do not intend now to go over that evidence at any considerable length, for my time will not permit me to do it; but I do invite the attention of gentlemen to that report to the end that they may at least do themselves, if not me, the justice to be advised what the facts are touching this case, so that they can act and decide intelligently on the final vote. The report of the majority submitted on the 18th instant is strangely brief, meager, and unsatisfactory. It states conclusions, but gives no evidence.

It is first charged that he fed rebel soldiers. The proof on that point, Mr. Speaker, does show that on several occasions Judge Young did furnish provisions to men who were engaged in the rebel service. The testimony also shows, and in some instances from the mouths of the same witnesses, that some of the best Union men in the ninth congressional district did just the same thing; and that they did it under circumstances which divested the act of every element of criminality, of every particle of disloyalty; that they did it under circumstances under which every principle of law, of morality, and of humanity, justifies the doing of it, under circumstances under which you, Mr. Speaker, and I would have done it. Many times under circumstances of absolute compulsion. Many times under the influence of fear. Other times for the purpose of saving Union men from having their property taken from them by brute force.

I presume that the statement of Mr. Hall, with regard to the "basket of provisions," will not be taken by an intelligent jurist as evidence of anything except the mere fact that he may have seen a negro with a basket. He does not even know what was in the basket: the negro only told him. He does not say that it was intended for the rebels at Boyd's, or that he knows it ever reached them, and, what is more material than all, he neither says nor intimates that Young was at home at the time, or, if at home, that he knew a syllable about what the negro was doing with the basket, what he intended to do with it, what it contained, or anything about it. Whatever may

have beer. the motive or intention of the transaction, it nowhere appears that Young had any knowledge of or connection with it whatever. And the same is true of the testimony of the negro man Spottswood Deadman, upon which the committee seem to have arrived at the conclusion that Mr. Young actually gave aid and comfort to the rebellion. The witness testifies as follows:

Question. Where do you reside?

Answer. At Mount Sterling, Kentucky.

'Question. What do you know of Mr. Young's loyalty during the war?

"Answer. When the rebels were passing through Owingsville, where I was then living, and where Mr. Young lived, he took a very active part in feeding them and conveying provisions to them. He always talked in favor of rebellion, and when rebels were passing through he would take them to his house and feed them. He also swapped a horse with Colonel Morgan, who was in the rebel service.

Question. What do you know about Mr. Young feeding rebels?

Answer. I saw provisions going from his house, and saw him taking rebels to the house.

Question. Did not Union men give the rebels something to eat?

Answer. Of course they did. They were forced to do so.

Question. Is that the only aid you know of Mr. Young giving to the rehellion?

Answer. I believe it is.

Question. When was it that you speak of? "Answer. In 1861, at the commencement of the war, I saw Mr. Young's boy, Louis, carrying provisions to the camp, which was about two miles out."

Whether this witness is more intelligent than the general mass of negroes in Kentucky it is not necessary to inquire, but I would invite attention to the character of his statements, and let candid and impartial minds determine for themselves what weight they are entitled to. He

says:

"When the rebels were passing through Owingsville, where I was then living, and where Mr. Young lived, he took a very active part in feeding them, and in conveying provisions to them.' But what does this "very active part" which Mr. Young took in feeding the rebels turn out to be! When carefully criticised, it seems, according to his own statements, that "in 1861, at the commencement of the war, he saw Mr. Young's boy, Louis, carrying provisions to the camp, which was about two miles out." How often? Let him answer himself:

Question. About how often did you see food going out from Mr. Young's house to those camps or squads of rebels?

Answer. Two or three or four times."

The broad assertion which this witness makes with such avidity, that Mr. Young "took a very active part in feeding rebels and conveying provisions to them," seems to have been justified in his mind by having seen another person altogether, the "boy Louis," two or three or four times, "carrying provisions to the camp, which was about two miles out;" but does he show that Young had anything to do with it? Does he state the quantity or kind of provisions, or that Young ever knew of their being carried to the camp? Does he state how he knows that the provisions ever went to the camp at all, which was two miles out? But where is the "boy Louis?" He could have told whether Young sent him with the provisions, and surely his testimony was not omitted by the contestant on account of his color, race, or condition, and his industry in hunting up other witnesses justifies the conclusion that if he would have testified to anything to Mr. Young's prejudice Mr. McKee would have produced him. "He would take rebels to his house and feed them," says Deadman; yet how does he know whether they were fed or not? He may have seen rebels going to Young's house in company with Young, but does it necessarily follow that Young fed them or encouraged them in their enterprise in any way? He says that Young swapped horses with Colonel Morgan; yet Morgan himself swears that Young consented to or rather suggested this

arrangement to save the horse of Mr. Barnes, one of his Union neighbors, less able to lose it, an act which should rather be applauded as one of neighborly kindness and generosity than paraded as an evidence of disloyalty and treason. Taking the whole of Deadman's testimony together, I am utterly unable to find that it furnishes anything like satisfactory evidence of an act or expression calculated or intended to forward the cause of the rebellion; and besides, it should be borne in mind, while considering the testimony of Hall and Deadman, that it is proved by John Trumbo and others that while the rebels were encamped at Boyd's, in 1861, they sent into town and compelled the citizens to send them food. It may be conceded that the boy Louis did take provisions out to the rebel camp two or three or four times in 1861; that rebels were seen in Young's company, and going to his house; yet I insist that there is not an iota of proof that Young even knew that the provisions were sent, or that he ever spoke a word of encouragement to the rebels; and surely it will not be said that a man whose integrity even his political enemies speak of as unimpeachable shall have a stigma cast upon his good name, be deprived of the position to which he has been fairly elected, and his constituents deprived of their right to be represented by the man of their choice, on such flimsy, unsatisfactory, and incoherent evidence as this.

Such is the case in reference to Judge Young's feeding rebel soldiers. He did sometimes take them to his house; he sometimes gave them food and lodgings; and the testimony shows in many cases he did these acts for the express purpose of protecting Union men in the town where he lived-his neighbors and fellow-citizens and friends-from being outraged by these men. Is that criminal? Will this House decide that the laws of humanity in times of public strife are suspended, and that men must act like brutes, like bitter personal enemies, like monsters of the forest, toward each other?

The next charge which the majority of the committee seem to have come to the conclusion is made to appear by clear and satisfactory evidence" is, that Mr. Young pointed out a Union soldier to some rebels, who captured him and carried him off at Young's suggestion. The only witness who testified to this fact is Greenup Nickell, a worthless rascal and felon, who relates the circumstance as follows:

"In the spring of 1863 I was on my way from Mount Sterling, Kentucky, home. After passing Owingsville, between Owingsville and State Bridge, I was met by a squad of confederate soldiers, as they called themselves, in number from fifteen to twenty, as near as I can remember. They told me they were going into Owingsville, and did not allow anybody to go out until they got ready, and that I must go back with them, which I did. After they rode into the town there was a pretty general rushing of the town people, who came up or out to see them. Among others who came there was a certain gentleman came down toward where I was, and up to the men who had me in charge, and close by where I was standing; he was pointing his finger in the direction of a certain house, and named the house, but I don't now remember the name of said house, and told the men that in that house there was a " Yankee soldier," and to go for him, which the rebel soldiers did. A part of the lot went to the house, and some who remained near me turned toward the gentleman, whom I did not know, and spoke to him and said: "How are you, Judge Young?" This same man whom they called Judge Young, and a part of the rebel soldiers, turned away from me and engaged in conversation in rather a lower tone of voice than at first. I did not hear what was then said, but in a very short time a part of the same men went off, and in a few minutes returned with some horses, upon one of which they mounted the prisoner they had taken, and soon after moved of. Before they returned with the horses the man whom they called Judge Young went off, and I did not then again see him any more.'

Before proceeding to examine this statement it should be remarked that the testimony of this witness was taken under very singular circumstances. It seems, from an examination of the numerous notices served in this case, that Mr. Young was first notified that the deposition of Greenup Nickell would be taken in Carter county on the 4th of September. (See H. Doc. 13, pp. 88, 89.) Mr. Young attended, and the witness was not produced. Mr. McKee then gave notice that he would take the deposition

of Nickell in Rowan county, on the 30th and 31st of October. Mr. Young's attorney was present to cross-examine, and again the witness was not produced. (H. Doc. 18, p. 75.) Mr. Young, on the 26th day of August, had notice served on Mr. McKee that he would take the deposition of Thomas W. Green in Maysville, Mason county, on the 14th and 15th days of November; and on the 2d day of November Mr. McKee again gave notice that he would take the deposition of this witness at Morgan county, on the 13th and 14th of that month, when it would be impossible, in the very nature of things, for Young to reach there from Maysville, or go from there to Maysville in time to take the depositions at the latter place. Had Nickell known Young personally there would, perhaps, have been nothing at all peculiar in the circumstance that his attendance could not be procured until Young was compelled to be absent, but it does become somewhat suspi cious when taken in connection with the following statement in his testimony:

"Question. Have you seen him since? and if so, state the circumstances.

"Answer. I don't know whether I have ever seen him since or not, but at February court, just previous to the May election last, I was in court in the courthouse at Moorehead, and while the court was going on I heard some one speak out, How are you, Judge Young?' I was at once reminded of the same expression I had heard at Owingsville, and turned to see who it was. Tom Hayes, who had been a captain in the rebel ariny, was standing near, and I took him to be the man, from the voice, who then addressed the man he called Judge Young. I was not acquainted myself with Judge Young, but when I saw him there in the court-house at Moorehead I took him to be the same I had seen at Owingsville, and believe that he was the same man. These are the only two times I have seen Judge Young, if this was him."

Could Young have been present and the witness been compelled to meet the question face to face, "Is this the man to whom you allude?" his anwer might have exploded the whole testimony, just as Willis Hockaday's affidavit was when he was brought face to face with Young. But the statement of this witness does not seem to carry the air of truth upon its face. It has the limping, uncertain style of one who is conscious of swearing to a falsehood, who has a general idea of the outline of the lie he is to tell without having fixed up the minute details. He says, "After they rode into town there was a pretty general rushing of the town people, who came up or out to see them. Among others who came there was a certain gentleman came down toward where I was, and up to the men who had me in charge, and close by where I was standing; he was pointing his finger in the direction of a certain house, and named the house, but I don't now remember the name of said house," &c. This does not look like the simple, unvarnished language of truth. He carefully forgets the name of the certain house; cannot mention the names of any of the crowd who came up or out;" and, besides, he is careful to place Jo. Wells, the only man he recognized at all, so far off as not to be able to see or hear the "certain gentlemen who came down toward where he was, and up to the men who had him in charge, and close by where he was standing." Superadded to those suspicious features, this witness is proved by Judge Moore, a lawyer of Washington city and former resi dent of Kentucky, who testifies to having known him well while he, Moore, was county judge in Kentucky, to be a man of notoriously bad character, and utterly unworthy of belief on oath; and besides all this, such conduct as the testimony of this witness would, by impli cation, attribute to Mr. Young is utterly inconsistent with his whole course during the war.

46

Why was not this man Nickell produced and examined by Mr. McKee when Judge Young or his attorney could be present? Why was the matter so managed by him that he could be sure of an ex parte examination of his witness? Is it an unjust conclusion to assume that he feared the result of a cross-examination or to have his facile witness confronted by his in tended victim? If there had been a fair and proper examination of this scamp the result would have, no doubt, developed another such