REPORT OF COMMITTEE.

[The committee consisted of Messrs. Morton (chairman), Carpenter, Logan, Alcorn, Anthony, Mitchell, Bayard, and Hamilton of Maryland.]

IN THE SENATE OF THE UNITED STATES.

MARCH 25, 1873.-Ordered to be printed.

Mr. Morton, from the Committee on Privileges and Elections, submitted the following report:

The Committee on Privileges and Elections, to whom was referred the memorial of thirty-seven members of the legislature of Missouri in regard to the election of Lewis V. Bogy to the Senate of the United States from that State, have had the same under consideration and submit the following report:

The memorial sets forth that the recent examination by a committee appointed by the house of representatives of the legislature of Missouri, touching the currupt use of money in the election of Mr. Bogy, was imperfect; that it was not full and fair, and in the opinion of the memorialists, if the investigation had been conducted with more vigor and with a purpose of revealing the real facts of the case, other and more important evidence would have been produced showing that there was corruption in Mr. Bogy's election. The memorial, however, does not state what additional facts can be proven, nor indicate with any certainty the character of the new evidence that may be produced.

The committee understand that the only duty which they have upon this reference is to report to the Senate whether the memorial presents such facts as would justify the Senate in instituting an examination in regard to the election of Mr. Bogy, and are of the opinion that it does not. Such a proceeding is of a grave character, and should not be set on foot without such a statement of the evidence that could probably be produced as would appear to make it the duty of the Senate to proceed to an investigation.

The evidence taken by the committee of the legislature of Missouri also accompanies the memorial, and has been examined by the committee. It is not the province of the committee upon this reference to inquire whether the judgment pronounced by the house of representatives of the Missouri legislature upon this evidence was correct; but they express the opinion that the evidence is not of a character to require of the Senate an investigation.

The committee therefore ask to be discharged from the further consideration of the memorial and the evidence touching the election of Lewis V. Bogy to the Senate of the United States.

[Special session of Senate, March, 1873; and first sessions of the Forty-third and Fortyfourth Congresses.]

FRANCIS W. SYKES vs. GEORGE E. SPENCER; AND GEORGE E. SPENCER,

of Alabama.

December 13, 1872, the credentials of Mr. Spencer, elected for the term beginning March 4, 1873, were presented, and February 28, 1873, a memorial of Mr. Sykes claiming to have been elected for the same term was presented. Mr. Spencer was admitted, after debate, March 7. December 8, the memorial of Mr. Sykes was referred to the Committee on Privileges and Elections. April 20, 1874, the committee reported that at the time of the elections there were in Alabama two bodies, each claiming to be the legislature, one known as the court-house legislature, which had elected Mr. Spencer, December 3, 1872, the other known as the State-house legislature, which had chosen Mr. Sykes, December 10, 1872; that at the time of the election of Mr. Spencer there were eight or nine members of the State-house legislature having regular certificates of election, but "who are conceded not to have been elected"; that persons claiming the seats of these eight or nine members, but having no certificates of election, were in the court-house legislature; that the question to be decided was whether that legislature composed of a quorum of the persons actually elected should be regarded as the legislature of the State, or whether that legislature the quorum of which depended upon members not actually elected, but having regular certificates of election, should be regarded as the legal legislature; that the State-house legislature was the legislature in form, and the court-house legislature the legislature in fact; that it would not be competent for the Senate to inquire as to the right of individual members to sit in a legislature that is conceded to have a quorum in both houses of legally elected members; but that the Senate must in this case inquire into the rights to hold seats of the eight or nine members whose rights to seats were disputed, in order to determine which of the two bodies was the legal legislature; and that in such inquiry the Senate should not look merely to the evidence of the fact, but go back to the fact itself and determine who of those claiming seats were in fact elected; that the persons claiming to be the legislature who voted for Mr. Spencer constituted a quorum of the members actually elected. The committee asked to be discharged from the further consideration of the subject. There was a minority report. May 28, the Senate resolved that the committee be discharged from further consideration of the subject. A favorable report was made by the committee on a resolution to allow Mr. Sykes compensation and mileage, but no further action was taken by the Senate.

December 16, 1875, Mr. Spencer submitted a resolution that the committee be instructed to inquire whether in the election of Mr. Spencer corrupt means were used to secure his election. A report of a joint committee of the Alabama legislature on the election, and a memorial of the legislature that the seat held by Mr. Spencer be declared vacant, were also referred to the committee. May 20, 1876, the committee reported that the question whether Mr. Spencer was elected by the lawful legislature, raised in the memorial referred to, must be treated as res adjudicata; that upon the question whether Mr. Spencer or his friends had been guilty of bribery or corruption, the committee had made diligent inquiry, and had found that the charges were not proven; that no witness testified that Mr. Spencer or his friends had given or offered to give money or anything of value in consideration of votes; that only hearsay evidence to this effect was offered, which had been rejected by the committee. The committee reported the testimony taken and asked to be discharged from the further consideration of the subject. No further action was taken by the Senate. March 3, 1885, the Senate resolved that there be paid to Mr. Spencer the amount actually and necessarily expended by him in maintaining his title to his seat.

The history of the case here given consists of a transcript of the proceedings of the Senate relatIng to it from Senate Journals, 3d sess. 42d Cong., and 1st sess. 43d and 44th Congs., and the reports of the committee, references to which are given in foot-notes.

Special references to the debates of each day are inserted below.

FRIDAY, December 13, 1872. Mr. Morton presented the credentials of George E. Spencer, elected a Senator by the legislature of Alabama for the term of six years commencing March 4, 1873; which were read.

Ordered, That they lie on the table.

FRIDAY, February 28, 1873.

Mr. Goldthwaite presented a memorial* of Francis W. Sykes, claiming a seat in the Senate as Senator from the State of Alabama for the term of six years commencing March 4, 1873. Ordered, That it lie on the table and be printed.

[Special session of Senate, March, 1873.]

THURSDAY, March 6, 1873.

Mr. George E. Spencer, whose credentials had been heretofore presented to the Senate *Found in Senate Miscellaneous, 3d sess. 42d Cong., No. 94.

as a Senator from the State of Alabama, advanced to the Vice-President's chair to take the oath of office,

When

Mr. Bayard rose and objected to the oaths being administered to Mr. Spencer; and, On the question, Shall the oaths be administered to Mr. Spencer?

After debate,

On motion by Mr. Bayard that the further consideration thereof be postponed to to-morrow,

After further debate,

On motion by Mr. Hamlin, the Senate adjourned.

[The debate is found on pages 3-19 of the Congressional Record, vol. i.]

FRIDAY, March 7, 1873.

The Senate resumed the consideration of the question of administering the oaths of office to George E. Spencer as a Senator from the State of Alabama; and

The question being on the motion submitted by Mr. Bayard that the further consid eration thereof be postponed to to-morrow,

After debate,

It was determined in the negative-yeas 24, nays 32.

After further debate,

On motion by Mr. Bayard to refer the credentials of Mr. Spencer, and the memorial of Francis W. Sykes, claiming the seat in question, to a select committee of five Senators, it was determined in the negative-yeas, 20, nays 38.

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

Those who voted in the affirmative are Messrs. Bayard, Bogy, Casserly, Cooper, Davis, Dennis, Fenton, Goldthwaite, Hamilton of Maryland, Hamilton of Texas, Kelly, McCreery, Merrimon, Norwood, Ransom, Saulsbury, Stevenson, Stockton, Thurman, and Tipton.

Those who voted in the negative are Messrs. Alcorn, Allison, Ames, Boreman, Brownlow, Buckingham, Caldwell, Cameron, Chandler, Clayton, Conkling, Conover, Cragin, Dorsey, Ferry of Connecticut, Ferry of Michigan, Flanagan, Gilbert, Hamlin, Hitchcock, Howe, Ingalls, Jones, Lewis, Logan, Mitchell, Morrill of Vermont, Morton, Oglesby, Patterson, Pratt, Ramsey, Sargent, Stewart, Wadleigh, West, Windom, and Wright. So the motion was not agreed to.

On motion by Mr. Thurman that the further consideration of the question be postponed until the committees of the Senate are organized, it was determined in the negative. After further debate,

On the question, Shall the oaths of office be administered to Mr. Spencer? it was determined in the affirmative.

Whereupon

Mr. Spencer advanced to the chair, and the oaths of office having been administered to him by the Vice-President, he took his seat in the Senate.

[The debate is found on pages 20-29 of the Congressional Record, vol. i.]

[First session of the Forty-third Congress.]

MONDAY, December 8, 1873.

Mr. Gordon submitted the following resolution; which was considered by unanimous consent, and agreed to:

"Resolved, That the memorial of Francis W. Sykes, claiming to be a Senator-elect from the State of Alabama, with accompanying documents, be referred to the Committee on Privileges and Elections, with power to send for persons and papers."

MONDAY, April 20, 1874.

Mr. Carpenter, from the Committee on Privileges and Elections, to whom was referred the memorial of Francis W. Sykes, claiming a seat in the Senate as Senator from the State of Alabama, submitted a report (No. 291), with a recommendation that the committee be discharged from the further consideration of the memorial.

Mr. Saulsbury asked and obtained leave to submit the views of the minority of the Committee on Privileges and Elections on the foregoing memorial; which were ordered to be printed to accompany the report of the committee.

REPORT OF COMMITTEE.

[The committee consisted of Messrs. Morton (chairman), Carpenter, Logan, Alcorn, Anthony, Mitchell, Wadleigh, Hamilton of Maryland, and Saulsbury.]

IN THE SENATE OF THE UNITED STATES.

APRIL 20, 1874.-Ordered to be printed.

Mr. Carpenter submitted the following report:

The Committee on Privileges and Elections, to whom was referred the memorial of Francis W. Sykes, claiming to be Senator-elect from the State of Alabama, together with accompanying documents, respectfully submit the following report:

Mr. Sykes claims the seat now held by Hon. George E. Spencer as Senator from the State of Alabama; and his claim is based upon the assertion that the body claiming to be the legislature of the State of Alabama which elected the said Spencer was not the rightful legislature of that State, but that another body of men was such legislature; and that the latter body, on the 10th day of December, A. D. 1872, duly elected the said Sykes to be the Senator of the United States for that State for the term of six years commencing on the 4th day of March, A. D. 1873.

It is a fact that for some time after the day fixed by law for the organization of the legislature of that State, in 1872, there were two bodies, each claiming to be the legislature of that State-one known as the State-house legislature, which pretended to elect Mr. Sykes, and the other known as the court-house legislature, which pretended to elect Mr. Spencer; and the question is, which of these two bodies ought to be considered the rightful legislature at that time? On the 3d day of December, 1872, the court-house legislature, so called, pretended to elect Mr. Spencer. The governor of the State certified that Mr. Spencer had been duly elected on that day by the legislature of the State; and the Senate, upon that certificate, seated Mr. Spencer as a Senator for the term in question. The first question is, therefore, whether the body of men which pretended to elect Mr. Spencer can properly be regarded as the legislature of the State at the time of such pretended election. If so, Mr. Spencer's election was valid, and, of course, if that be so, Mr. Sykes can have no right to the same seat during the same term.

The general election in that State was held on the 5th day of November, 1872. The time fixed for the meeting of the legislature thereafter was on the 18th of November, 1872. The constitution of the State provides, section 6, Article IV: "The house of representatives, when assembled, shall choose a speaker and its other officers, and the senate shall choose a president, in the absence of the lieutenant-governor, and its other officers; each house shall judge of the qualifications, elections, and returns of its own members, but a contested election shall be determined in such manner as shall be directed by law. The president of the senate and the speaker of the house of representatives shall remain in office until their successors are elected and qualified."

By Article VIII of the constitution of Alabama, the house of representatives is declared to consist of one hundred members, apportioned among, and elected from, the counties of the State as directed in said article. The senate consists of thirty-three members, elected by the voters from the senatorial districts, as directed in said article, and these two bodies constitute the general assembly of the State, and in them, by section 1, Article I of the constitution, is vested the legislative power of the State.

By section 38 of the revised code of Alabama, which was re-enacted and continued in force by an act approved July 29, 1868, the general assembly is required to convene in the city of Montgomery.

It is provided by the act to regulate elections in Alabama as follows:

"SEC. 33. Be it further enacted, That one of the inspectors must number each ballot with the same number as the name of the voter on the poll-list, and the ballot must then, without being opened or examined, be deposited in the proper ballot-box.

"SEC. 34. Be it further enacted, That there shall be no challenging of electors appearing to vote at any election hereafter held in this State, and any registered voter appearing to vote at any election in this State shall be allowed to do so without question, challenge, or objection by any person; and any person who questions, challenges, or objects, or who unlawfully hinders or delays any person offering to vote, shall be guilty of a misdemeanor, and, on conviction, shall be fined five hundred dollars, and, on failure to pay the same, shall be imprisoned in the county jail for six months.

"SEC. 35. Be it further enacted, That it shall be the duty of the inspectors of all elections in the election precincts, immediately on the closing of the polls, to count out the votes that have been polled, and, after so doing, to promptly certify the poll-list, seal up the boxes containing the ballots and poll-list, and deliver them to the returning officer, who shall deliver such sealed boxes to the judge of probate within forty-eight hours

79908°-S. Doc. 1036, 62-3-41

after they may be delivered to him, and take a receipt from the judge of probate for such sealed ballot-boxes.

"SEC. 36. Be it further enacted, That judges of probate, sheriffs, and clerks of the circuit court, or any two of them, of the several counties are hereby constituted a board of supervisors of elections in and for their respective counties; and it shall be the duty of said board of supervisors to open, compare, and count the ballots cast at all elections. "SEC. 37. Be it further enacted, That it shall be the duty of the board of supervisors of elections, upon good and sufficient evidence that fraud has been perpetrated, or unlawful or wrongful means resorted to to prevent electors from freely and fearlessly casting their ballots, to reject such illegal or fraudulent votes cast at any of such polling places, which rejection, so made as aforesaid, shall be final, unless appeal is taken within ten days to the probate court; and in case of a tie for any county officer, the board of supervisors shall decide.

"SEC. 38. Be it further enacted, That it shall be the duty of the board of supervisors, within five days from the date of receiving the sealed boxes and certificates of the number of votes cast at each polling place from the inspectors, to make certificates, on blanks furnished by the secretary of state, of the exact number of votes cast in their county for each person, stating the office such person is voted for, and forward them, excepting for governor, lieutenant-governor, secretary of state, auditor, treasurer, and attorney-general, to the secretary of state, who shall, after such returns have been duly examined by the secretary of state, be filed as other public papers required to be kept in his office, and shall be subject to the inspection of any elector of this State.

"SEC. 39. Be it further enacted, That the board of supervisors shall forward a certified return of election for governor, lieutenant-governor, secretary of state, auditor, treasurer, and attorney-general to the presiding officer of the senate at least thirty days before the time fixed for the meeting of the next general assembly.

"SEC. 40. Be it further enacted, That it shall be the duty of the presiding officer of the senate, within five days after the assembling of the general assembly, in the presence of a majority of the members of the general assembly, to open the returns and proclaim the result of such election, after which they shall be filed in the office of secretary of state, as required by section thirty-seven of this act.

"SEC. 41. Be it further enacted, That it shall be the duty of the secretary of state to furnish, from time to time, the board of county supervisors with all necessary blanks upon which to make election returns.

"SEC. 42. Be it further enacted, That it shall be the duty of the secretary of state to forward certificates of election to such persons as may be ascertained to be elected to any office in this State, addressed to the board of supervisors, at the court-house of the county in which such person returned as elected may reside, within ten days after receiving such returns of election from the supervising board of the county; and it shall be the duty of said board of supervisors to forward said election certificates to the persons entitled thereto."

Section 7 of Article IV of the constitution provides as follows:

"A majority of each house shall constitute a quorum to do business, but a smaller number may adjourn from day to day, and may compel the attendance of absent members in such manner and under such penalties as each house may provide."

On the 18th day of November, 1872, the day fixed by law for the assembling of the legislature, eighteen persons holding the required certificates of election as senators, issued to them by the secretary of state, appeared in the senate chamber in the capitol at Montgomery, and at 12 o'clock noon were called to order by the holding-over lieutenant-governor, Moren. They exhibited their certificates of election issued to them by the secretary of state, enrolled their names as senators, took the oath of office in due form, and proceeded to the election of officers pro tempore, viz, secretary, assistant secretary, and other officers. On the next day another senator presented his certificate, enrolled himself, and took the oath of office, in pursuance of section 48 of the revised code of Alabama. All of said senators took the oath prescribed by Article XIV of the constitution before the Hon. J. Q. Smith, one of the circuit judges of the State of Alabama. On the next day the senate, so constituted, proceeded to elect its permanent officers, all its proceedings being under the presidency of the Hon. E. H. Moren, lieutenant-governor of the State. Said proceedings were had by a majority of the whole number required by the constitution to constitute a senate.

On the 18th day of November, 1872, at the hour of 12 o'clock noon, the Hon. John P. Hubbard, speaker of the previous house of representatives, took his seat at the speaker's desk in the hall of the house of representatives in the capitol in Montgomery, and called the house to order. Less than one-half of the hundred persons who constitute a full house appeared in their places. These persons exhibited certificates of elec tion to the house of representatives issued to them by the secretary of state, as required by the act before quoted, enrolled themselves as members of the house, and adjourned until the next day.