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On motion by Mr. Davis, the yeas and nays being desired by one-fifth of the Senators present,

Those who voted in the affirmative are Messrs. Alcorn, Allison, Ames, Anthony, Boreman, Boutwell, Chandler, Conover, Cragin, Dorsey, Ferry of Connecticut, Ferry of Michigan, Frelinghuysen, Hitchcock, Howe, Ingalls, Jones, Lewis, Logan, Mitchell, Morrill of Maine, Morton, Patterson, Pratt, Ramsey, Robertson, Sargent, Scott, Sherman, Stewart, West, Windom, and Wright.

Those who voted in the negative are Messrs. Cooper, Davis, Goldthwaite, Gordon, Merrimon, and Norwood.

So the resolution was agreed to.

[The debate is found on pages 184-192 of the Congressional Record, special session of the Senate, 43d Cong.]

[Third session Forty-second Congress to third session Forty-sixth Congress.]

RAY vs. MCMILLEN; MCMILLEN vs. PINCHBACK (MARR AND EUSTIS); AND SPOFFORD vs. KELLOGG (MANNING).

of Louisiana.

William P. Kellogg, whose term expired March 3, 1873, resigned January 13, 1873. January 22, 1873, credentials of John Ray and William L. McMillen, each claiming to have been elected to fill the unexpired term, were presented, and referred to the Committee on Privileges and Elections. Mr. Ray's credentials were signed by William P. Kellogg as governor, and Mr. McMillen's by John McEnery as governor. January 16, a resolution of the Senate directing the committee to inquire and report whether there was an existing legal State government in Louisiana had been referred to the committee. February 20, the committee submitted one report on the credentials and on the resolution. They reported that the State election held in November, 1872, in which Messrs. Kellogg and McEnery each claimed to have been elected governor, was void for fraud; that the Kellogg government, so called, approached more nearly a government de facto, and the McEnery government a government de jure; that had the election been fairly conducted, Kellogg and a legislature of the same political party would have been elected, but that, while the Kellogg government was in possession of the State-house, there was not a quorum of both houses of the Kellogg legislature who had any pretense of having been elected to their seats; that, under such circumstances, Congress had authority to order a new election. The committee recommended the adoption of resolutions that there was no State government existing at the time in Louisiana, and that neither Ray nor McMillen was entitled to a seat, neither having been elected by the legislature of the State, and recommended the passage of a bill ordering an election in the State. Three members of the committee submitted separate views dissenting from the conclusions of the majority. The bill referred to was rejected February 27, 1873. No further action was taken on the credentials. The expenses incurred by Messrs. Ray and McMillen were reimbursed. The proceedings of the Senate relating to the resolution of January 16 and the bill referred to are not included in the proceedings given below.

The legislature electing Mr. McMillen for the unexpired term ending March 3, 1873, elected him for the succeeding term, and the legislature electing Mr. Ray elected Pinckney B. S. Pinchback for the succeeding term. December 4, 1873, the credentials of both were referred to the Committee on Privileges and Elections. December 15, the committee reported that they were evenly divided upon the question as to whether Mr. Pinchback was upon his credentials entitled to be sworn as a member, and asked to be discharged from the further consideration of the subject and to refer the whole matter to the determination of the Senate. On the same day a resolution was submitted that the credentials of Mr. Pinchback being in due form he was entitled to be sworn as a member, and that any grounds of contest should be made thereafter. January 26, 1874, the resolution was modified so that the credentials of Mr. Pinchback be referred to the Committee on Privileges and Elections, and that the committee be instructed to inquire into the conduct of Mr. Pinchback in connection with his election. January 27, it was ordered that the credentials of Mr. McMillen be referred to the committee. The Senate debated the resolution of January 26, but no further action was taken during the session. December 23, 1874, a resolution was submitted that the Committee on Privileges and Elections be instructed to report if Mr. Pinchback was entitled to be admitted on a prima facie case, or if such admission should be postponed until after the investigation of the charges of corruption. January 22, 1875, credentials of a second election of Mr. Pinchback, signed by Mr. Kellogg as governor, were presented. They were referred the same day, together with all the papers in relation to the contested seat, to the committee. (All subsequent action by the Senate was on Mr. Pinchback's first credentials.) February 8, the committee reported that Mr. Pinchback had a prima facie title to admission, and recommended the adoption of a resolution that he be admitted. There was a minority report. The Senate debated the resolution for some days, when it was ordered to lie on the table. March 5, the same resolution was submitted and debated. December 15, 1875, the Senate resolved "that the request of W. L. McMillen, heretofore claiming a seat in the Senate, for the return of his credentials be granted." December 20, the credentials of Robert H. Marr, appointed by John McEnery as governor, to fill the vacancy occasioned by the resignation of Mr. McMillen, were presented and ordered to lie on the table. January 18, 1876, the papers purporting to be the credentials of James B. Eustis, elected by the legislature of Louisiana to the contested seat, were presented and ordered to lie on the table. January 24, they were referred to the committee. January 28, the committee reported that Mr. Pinchback having been elected to that seat, there was no vacancy, and recommended that the papers relating to Mr. Eustis be laid on the table. February 3, the Senate resumed the consideration of the resolution of March 5, 1875, and March 8, the resolution having been amended by inserting the word "not" before the word "admitted," the Senate resolved that Mr. Pinchback be not admitted. March 9, 1877, the Senate resolved that the credentials of Mr. Eustis be taken from the files and referred to the committee. December 1, the committee reported that the legislature electing Mr. Eustis, made up according to what was known as the "Wheeler compromise," was the lawful legislature; that a vacancy existed at the time of his election; and that the committee felt bound to regard the vote of the Senate on Mr. Pinchback's claim as final adjudication. They reported a resolution that Mr. Eustis be admitted. December 10, the resolution was agreed to, and Mr. Eustis took the seat which had been vacant since the resignation of Mr. Kellogg, January 13, 1873. Mr. Pinchback was allowed compensation from the beginning of the term to the period of the determination of the contest.

From the existence of two rival bodies, each claiming to be the legislature of Louisiana, arose another contest for the seat for the term beginning March 4, 1877. Mr. Kellogg's credentials were presented January 20, 1877. Objection having been made to the oaths being administered to him March 5, the Senate resolved, March 7, that the credentials lie on the table, to be referred to the Committee on Privileges and Elections when appointed. October 17, the credentials of Henry M. Spofford were presented. October 18, the Senate resolved that the credentials of Mr. Spofford be referred to the com mittee, and that the committee also report on the credentials of Mr. Kellogg. November 26, the committee reported that Mr. Kellogg's credentials were signed by Stephen B. Packard as governor, and hat he had been elected January 10, 1877, by what was known as the Packard legislature; that Mr.

Spofford's credentials were signed by Francis T. Nicholls as governor, and that he had been chosen April 24, 1877, by what was known as the Nicholls legislature; that the committee had gore behind the certificates of the returning officers of the State, and had investigated the elections of individual members of the general assembly; that they found that the returning officers in throwing out certain polls where freedom of election was utterly destroyed, and declaring Republican candidates elected, did what they believed to be legal, and what was really equitable; that a sufficient number of the members by whose votes Mr. Kellogg was elected were lawfully and equitably entitled to their seats; that afterwards the Nicholls legislature by illegal means came to contain an undisputed majority of members lawfully elected to the general assembly, but that until and after the election of Mr. Kellogg the Packard legislature was de facto and de jure the government of Louisiana; that upon that legislature devolved the duty of electing a Senator; that the duty was performed in the election of Mr. Kellogg; that no subsequent events, especially successful revolution, could undo what had been lawfully done. The committee recommended the adoption of the following resolutions: Resolved, That William Pitt Kellogg is, upon the merits of the case, lawfully entitled to a seat in the Senate of the United States from the State of Louisiana for the term of six years, commencing on the 4th day of March, 1877, and that he be admitted thereto upon taking the proper oath. Resolved, That Henry M. Spofford is not entitled to a seat in the Senate of the United States." There was a minority report. November 30, the resolutions were agreed to, and Mr. Kellogg took the seat. March 21, 1879, a memorial of Mr. Spofford was presented, praying for an investigation into his claim to a seat, which was referred to a committee. May 7, the Senate resolved that the committee be authorized to make a full investigation into the subject. March 22, 1880, the committee reported that the evidence taken showed that the Packard legislature was, in fact as well as in law, not a legislature, but a body of men assembled by fraud, held together by force, and controlled by bribery, with the aid and in the interest of the sitting member. The committee reported the testimony taken and recommended the adoption of resolutions that Mr. Kellogg was not entitled to the seat in the Senate, and that Mr. Spofford was chosen by the legislature, and that he be admitted to the seat. A minority report claimed that the resolutions of November 30, 1877, were binding as final decisions by the Senate; that a change in the party majority in the Senate was the only change that had taken place since Mr. Kellogg took his seat in pursuance of a resolution of November 30, 1877. The resolutions reported by the committee were debated, but no further action was taken by the Senate. December 7, 1880, credentials of Thomas C. Manning, appointed by the governor in place of Mr. Spofford who died August 20, 1880, were presented and referred to the committee. No further action was taken on the credentials. Compensation from March 4, 1877, to August 20, 1880, were allowed to the representatives of the estate of Mr. Spofford. The expenses incurred by Messrs. Kellogg and Manning were reimbursed.

The history of the cases here given consists of a transcript of the proceedings of the Senate relating to them from Senate Journals, 3d sess. 42d Cong. to 1st sess. 47th Cong., and the reports of the committee (except the testimony).

Special references to the debates of each day are inserted below, and references to the reports are given in foot-notes.

RAY vs. MCMILLEN.

Contest for seat for unexpired term ending March 3, 1873.

WEDNESDAY, January 22, 1873.

Mr. West presented the credentials of W. L. McMillen, elected a Senator by the legislature of Louisiana to fill the vacancy occasioned by the resignation of William Pitt Kellogg; which were referred to the Committee on Privileges and Elections. Mr. West presented the credentials of John Ray, elected a Senator by the legislature of Louisiana to fill the vacancy occasioned by the resignation of William Pitt Kellogg; which were referred to the Committee on Privileges and Elections.

THURSDAY, February 20, 1873.

Mr. Carpenter, from the Committee on Privileges and Elections, who were directed by a resolution of the Senate of January 16, 1873, to “inquire and report to the Senate whether there is an existing legal State government in Louisiana, and how and by whom it is constituted," and to whom were referred the credentials of W. L. McMillen and John Ray, claiming seats in the Senate in the place of W. P. Kellogg, resigned, submitted a report (No. 457), accompanied by a bill† (S. 1621) to establish a government in the State of Louisiana, republican in form; which was read and passed to a second reading.

Mr. Morton, Mr. Hill, and Mr. Trumbull, members of the Committee on Privileges and Elections, each submitted views dissenting from the conclusions arrived at by the committee, which were ordered to be printed to accompany the report (No. 457).

REPORT OF COMMITTEE.

IN THE SENATE OF THE UNITED STATES.

FEBRUARY 20, 1873.-Ordered to be printed.

Mr. Carpenter submitted the following report to accompany bill S. 1621:

The Committee on Privileges and Elections, to whom was referred Senate resolution of January 16, 1873, as follows:

"Resolved, That the Committee on Privileges and Elections be instructed to inquire *The resolution here given is the one on which this report was made. The one given by an error in the Senate Journal (resolution of January 7, 1873) was reported February 10 (No. 417). For copy of bill see Congressional Globe, part 3, 3d sess. 42d Cong., pages 1850, 1851.

From Senate Reports, 3d sess. 42d Cong., No. 457. The accompanying testimony is here omitted.

and report to the Senate whether there is any existing State government in Louisiana and how and by whom it is constituted,"

And to which committee were also referred the credentials of John Ray and W. L. McMillen, both claiming the seat supposed to have been made vacant by the resignation of William Pitt Kellogg, a Senator of the United States from the State of Louisiana, respectfully submit the following report:

Your committee have devoted weeks to the investigation of the subjects referred to them, and have taken much record and oral testimony, which accompanies this report. On the 15th of January, 1873, John McEnery certifies, under what purports to be the great seal of the State of Louisiana, that he is governor of said State; and that on the 14th day of January, 1873, W. L. McMillen was by the legislature of said State duly elected a Senator of the United States to fill the unexpired term of Hon. William Pitt Kellogg. On the same day, January 15, 1873, William Pitt Kellogg certifies, under what purports to be the great seal of said State, that he is the governor of said State, and that John Ray was duly elected by the legislature of said State on the 15th day of January, 1873, to fill said unexpired term of said Kellogg in the Senate of the United States.

The certificate of said John McEnery is countersigned by Y. A. Woodward, assistant secretary of state; and the certificate of said Kellogg is countersigned by P. G. Deslondes, secretary of state.

The Senate must therefore determine whether either McMillen or Ray, and, if either, which, is entitled to said seat.

The extraordinary fact that two men are claiming to be the governor of said State, and that two men are certified under the great seal of the State to have been elected to one and the same seat in the Senate, and the resolution of the Senate requiring your committee to inquire and report whether there is any existing State government in Louisiana and how and by whom it is constituted, have compelled your committee to inquire fully into the condition of things in that State; and the conclusions to which your committee have arrived are now to be stated:

On the 4th day of November last, Henry C. Warmoth was governor of said State, having been elected in 1868. On that day a general election for governor and other State officers, and one-half of the senate and all the members of the house of representatives of said State, ought to have been holden.

The constitution of said State, art. 46, provides as follows:

"Returns of all elections for members of the general assembly shall be made to the secretary of state."

The constitution, Title III, executive department, art. 48, provides as follows: "The supreme executive power of the State shall be vested in a chief magistrate, who shall be styled the governor of the State of Louisiana. He shall hold his office during the term of four years, and, together with the lieutenant-governor elected for the same term, be elected as follows: The qualified electors for representatives shall vote for governor and lieutenant-governor at the time and place for voting for representatives; the returns of every election shall be sealed up and transmitted by the proper returning officer to the secretary of state, who shall deliver them to the speaker of the house of representatives on the second day of the session of the general assembly then to be holden. The members of the general assembly shall meet in the house of representatives to examine and count the votes. The person having the greatest number of votes for governor shall be declared duly elected; but in case of a tie-vote between two or more candidates, one of them shall be immediately chosen governor by joint vote of the members of the general assembly. The person having the greatest number of votes polled for lieutenant-governor shall be lieutenant-governor; but in case of a tie-vote between two or more candidates one of them shall be immediately chosen lieutenantgovernor by joint vote of the members of the general assembly."

Article 60 provides as follows:

"He (the governor) shall nominate and, by and with the advice and consent of the senate, appoint all officers whose offices are established by the constitution, and whose appointments are not herein otherwise provided for: Provided, however, That the general assembly shall have a right to prescribe the mode of appointment to all other offices established by law."

These are provisions of the constitution with which the reconstructed State of Louisiana was admitted into the Union.

On the 16th of March, 1870, the legislature of that State pretended to pass a law regulating elections, which among other things provided as follows:

"SEC. 29. Be it further enacted, &c., That in any parish, precinct, ward, city, or town, in which during the time of registration or revision of registration. or on any day of election, there shall be any riot, tumult, acts of violence, intimidation, armed disturbance, bribery, or corrupt influences at any place within said parish, or at or near any poll

or voting place, or place of registration or revision of registration, which riot, tumult, acts of violence, intimidation, armed disturbance, bribery, or corrupt influences shall prevent, or tend to prevent, a fair, free, peaceable, and full vote of all the qualified electors of said parish, precinct, ward, city, or town, it shall be the duty of the commissioner of election, if such riot, tumult, acts of violence, intimidation, armed disturbance, bribery, or corrupt influences occur on the day of election, or of the supervisor of registration, or any assistant supervisor of registration of the parish, if they occur during the time of registration or revision of registration, to make in duplicate and under oath a clear and full statement of all the facts relating thereto, and of the effect produced by such riot, tumult, acts of violence, intimidation, armed disturbance, bribery, or corrupt influences, in preventing a fair, free, peaceable, and full registration or election, and of the number of qualified electors deterred by such riot, tumult, acts of violence, intimidation, armed disturbance, bribery, or corrupt influences, from registering or voting, which statement shall also be corroborated under oath by three respectable citizens, qualified electors of the parish.

"When such statement is made by a commissioner of election or assistant supervisor of registration he shall forward both copies to the supervisor of registration immediately on the close of the election. The supervisor of registration shall forward one copy of all such statements, whether made by himself or a commissioner of election or by an assistant supervisor of registration, to the governor, and shall deposit one copy with the clerk of the district court of the parish.

"SEC. 53. Be it further enacted, &c., That immediately upon the close of the polls on the day of election the commissioners of election at each poll or voting place shall seal the ballot-box by pasting slips of paper over the keyhole and the opening in the top thereof, and fastening the same with sealing-wax, on which they shall impress a seal, and they shall write the names of the commissioners on the said slips of paper; they shall forthwith convey the ballot-box so sealed to the office of, and deliver said ballotbox to, the supervisor of registration for the parish, who shall keep his office open for that purpose from the hour of the close of the election until all the votes from the several polls or voting places of the precinct shall have been received and counted. The supervisor of registration shall immediately upon the receipt of said ballot-box note its condition and the state of the seals and fastenings thereof, and shall then, in the presence of the commissioners of election and three citizens, freeholders of the parish for such poll or voting place, open the ballot-box and count the ballots therein, and make a list of all the names of the persons and offices voted for, the number of votes for each person, the number of ballots in the box, and the number of ballots rejected, and the reason therefor. Said statements shall be made in triplicate, and each copy thereof shall be signed and sworn to by the commissioners of election of the poll and by the supervisor of registration. As soon as the supervisor of registration shall have made the statement above provided for, for each poll in his precinct or parish, and it shall have been sworn to and subscribed as above directed, the supervisor of registration shall inclose in an envelope of strong paper or cloth, securely sealed, one copy of such statement from each poll and one copy of the list of persons voting at each poll, and one copy of any statements as to violence or disturbance, bribery or corruption, or other offenses specified in section 29 of this act, if any there be, together with all memoranda and tally-lists used in making the count and statement of the votes, and shall send such package by mail, properly and plainly addressed, to the governor of the State. The supervisor of registration shall send a second copy of said statement to the governor of the State by the next most safe and speedy mode of conveyance, and shall retain the third copy in his own possession.

"SEC. 54. Be it further enacted, &c., That the governor, the lieutenant-governor, the secretary of state, and John Lynch and T. C. Anderson, or a majority of them, shall be the returning officers for all elections in the State, a majority of whom shall constitute a quorum and have power to make the returns of all elections. In case of any vacancy by death, resignation, or otherwise by either of the board, then the vacancy shall be filled by the residue of the board of returning officers. The returning officers shall, after each election, before entering upon their duties, take and subscribe to the following oath before a judge of the supreme or any district court:

"'I, A. B., do solemnly swear (or affirm) that I will faithfully and diligently perform the duties of a returning officer as prescribed by law; that I will carefully and honestly canvass and compile the statements of the votes, and make a true and correct return of the election: So help me God.'

"Within ten days after the closing of the election said returning officers shall meet in New Orleans to canvass and compile the statements of votes made by the supervisors of registration, and make returns of the election to the secretary of state. They shall continue in session until such returns have been completed. The governor shall at such meeting open in the presence of the said returning officers the statements of the supervisors of registration, and the said returning officers shall, from said statements, canvass

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