FEDERAL MEDDLING WITH ELECTIONS.
SPEECH
OF
HON. S. S. COX.
Thursday, April 17, 1879.
" What is representative government good for?" Our reply
is, It is good, especially good, good above all others, for doing
the thing a government should dij. It is bad, especially bad,
bad above all others, for doing the thing which a government
should not do.—Herbert Spencer's Essays, page 207.
FEDERAL MEDDLING WITH ELECTIONS
SPEECH
OF
HON. S. S. COX.
Thursday, April 17, 1879.
" What is representative government good for ?" Our reply-
is, It is good, especially good, good above all others, for' doing
the thing a government should do. It is bad, especially bad,
bad above all others, for doing the thing which a government
should not do,—Herbert Spencer's Essays, page 207,
SPEECH
OF
HON. SAMUEL S. OOX.
<"On the bill (H. It. No. 2) making appropriations for the legislative, executive, and
judicial expenses of the Government for the fiscal year ending June 30, 1880, and
for other purposes.
_" What is representative government good for ?" Our reply is, It is good, espe¬
cially good, good above all others, for doing'the thing a government should do. It
vis bad, especially bad, bad above all others, for doing the thing which a govern¬
ment should not do.—Herbert Spencer's Essays, page 207.
Mr. COX. Mr. Speaker, extraordinary emergencies demand extraor¬
dinary methods. Wherever possible, unity should be given to all
bills, both as to style and matter, which are here proposed. Good leg¬
islation is best had by compressing one subject into one bill, so that
each proposition of an appropriation or other bill should stand or fall
on its intrinsic merit or demerit, either for legislative or executive
action.
UNITY IN LEGISLATIVE BILLS.
There is a unity in all things. There is a unity in nature, there
are unities in art, in the drama, in chemistry, astronomy, and in fact
in all the sciences. All nature is bound up in one bundle, while in
its variety of mind and matter there is unity of design and operation.
In the government of God this unity is most apparent; yet where is
there such variety in unity ? Why should human government be left
out of this general law? Why should it not rule in the framing of
laws for human society? Is it not wise, judicious, convenient, and
bonest that one statute should comprehend one subject? Why not
discard all others ? The wisest men, men of large experience and
philosophic forecast, have inserted in our constitutions and ingrafted
upon our progressive social philosophy the idea that every law should
• contain but one subject, and as if to insure the salutary operation of
this rule should succinctly state, that object in its title.
I dwell upon this practice of legislation because it meets us here
■at every step in legislation. In my absence, the gentleman from
Massachusetts, [Mr. Robinson,] whom it is my pleasure to honor, in
remarking upon Rule 120, which I introduced from the Committee
on Rules in the Forty-fourth Congress, quoted from my statement
that the rule should not have "so loose an interpretation as had
been given to it." I did say that I never dreamed it would be car¬
ried so far as that you might tack on legislation that would extend
"to every department of the Government. I repeat it. That rule was
primarily intended for retrenchment, and not for general legislation.
Jit served its purpose well under the economic labors of Judge Hoi-
4
man and our distinguished Speaker. While I did disfavor its appli¬
cation to whole codes like Indian hills or post-route bills or subsidy
bills as riders, I was anxious to use it to redeem the time by econ¬
omy. The good sense of the rule is apparent, and the House has
acted on it, in making a separate bill as to the Army at the polls.
I may be pardoned for giving more at length my reasons for thia
rule, as we expect to pursue it, if a veto is had upon the legislative,,
executive, and judicial bill.
Where two purposes are included in one law, by the nature of
things, the agency employed must fulfill both imperfectly. The illus¬
trations are familiar, and are drawn from the Edinburgh Review. A
blade which is designed both to shave and to carve will certainly
not shave so well as a razor or carve so well as a carving-knife. An
academy of painting which should also be a bank would in all prob¬
ability exhibit very bad pictures and discount very bad bills.. A.gas
company which should also be an infant school society would light
the streets illy and teach the children illy. There is no rule for good
legislation so valuable as that which would overcome the " hinderance
which results from multiplicity of parts." Dissensions are multi¬
plied by it, and confusion is a consequence; but the worst feature of
such legislation is, that bad legislation may get through on the. merits
of the good.
REPUBLICAN INCONSISTENCY.
What a loving devotion was shown by our friends on the other
side, toward a good principle and practice, when our appropriation bills
came into the House with riders tacked upon them! They forgot all
consistency, all previous multifarious legislation of their own, to
praise this beautiful and useful rule; but when we present our legis¬
lation in conformity with this rule, why have we no more peans sung
in its praise ? Why do the opposition here, with unbroken front, vote
against and threaten a veto of an independent measure, which they
promised to approve on the condition that it was engrossed in one.
single bill ?
Inasmuch, however, as so much of this legislation which should be-
repealed was enacted by riders, it would not be very much amiss to re¬
peal them by the same mode. To repeal a mischievous law, or any law,,
is by no means in similicasu with the enactment. When the repealing
is done thoroughly, let us act on a lesson from the gentleman front
Ohio [Mr. Garfield] at the beginning of this session as to contested'
elections: "Let us," he seemed to say, "now, at the beginning of.
this virginal and immaculate Congress, begin to be good and just.
We have all been wrong before; let us now turn over to a clean
white leaf and write our laws with the pen of the recording angel!"
While I have been strenuous both upon the Committee on Rules
and in the House for this practice, as adopted by more than half the
States; while amused at the pretenses of gentlemen as to "riders,"
the virtue of which they never knew till they were stoned with them,
yet I do believe that the objections to the Army bill, in all other re¬
spects acceptable to the other side, except in the sixth military elec¬
tion section, are thin and untenable. They are unworthy of discus¬
sion, except as they deal, with this vicious parliamentary practice.
Aside from that, there is not a scintilla to support the pseudo-states¬
manship of refusing to sign a measure which repeals what is alleged
to be already dead and disused, and because it is only the repeal and
negation of a statute which allows force at elections under the pretext
of keeping the peace.
What can be the objection to the independent bill as to. the Army;
o
£it elections? Does it exclude the civil posse from its operation,
though armed ? Does it not leave the President and his civil subor¬
dinates free to summon a force ? Does it not give him every right to
employ the Army and Navy even at the polls, whenever the fourth
section of the fourth article of the Constitution and the laws passed
to carry it out, require ?
Who denies to the Federal Government a police force to execute its
laws ? Cannot the marshal, like a. sheriff, call his posse ? But we
do deny to the Army, be it great or small, which is governed by ar¬
ticles of war, and not by the laws of the land, any police quality on
election days. A soldier who obeys orders and kills a citizen cannot
be tried for murder. He is amenable to no law; his business is to
kill on demand. He has no place, therefore, in civil functions or
franchises.
No part of the bill to repeal these election clauses threatens to dom¬
ineer over the power of the Federal Government. It can still protect
a republican form of government in the States and put down any
domestic violence therein, when properly called upon. Nor does it
interfere with the other constitutional call as to foreign invasion.
Whether on election day or any other day, this same power remains.
It will remain notwithstanding this bill. It remains, so that the
Army and Navy can be used for the prescribed proper purpose.
Do you say such a repeal was not demanded ? Have you forgotten
1870 in New York City ? Do we fail to remember the State-house at
New Orleans surrounded by General Grant's myrmidons ? Do you
forget Attorney-General Taft's prescript in 1876, and how the State-
house in Columbia was guarded ? In 1877 I passed into that State-
house between Federal soldiers, with arms stacked in its corridors. It
was high time in 1877 that Congress should demand a halt upon this
despotic march. That we did; and the Army bill of that year fell.
In 1878 we passed the posse comiiatus clause. This the President ap¬
proved. Then it was found that a section of the law (Revised Stat¬
utes, 2002) allowed the Army to " keep the peace at the polls." Then
we struck at this fetter on free elections. It will also fall; fall it
must, though the very veto may be answered by a new enactment
which may also be vetoed. These separate bills are the Ithuriel spear
to bring out the innate diabolism of the party of force. Is it any rea¬
son for opposing the repealing statute that the repeal is already done ?
Suppose it be true, as is said, that the laws already in force prevent
military interference at elections. Suppose the new statute is sur¬
plusage; must the President therefore defy the majority of both
Houses? But it is said that the bills are accompanied with a threat
of starvation! Why, if the law hadvbeen already repealed, and if it
were a good and necessary law—why does not the President ask for
its re-enactment ? He should, to be consistent; for if it were only
a repeal of that already dead, why beg to be " starved " when provis¬
ions are plentifully granted in the bill ?
I
CABINET COUNSELS—THE VETO.
It is said that the President consults the Cabinet before he vetoes.
If so, what will be the influence of Mr. Sehurz, who held that the
deed done on the 4th of January, 1874, by " United States soldiers,
with fixed bayonets," in the State-house of Louisiana, was a gross and
manifest violation of the Constitution and laws of this Republic ?
What will be the counsel of- Mr. Evarts, who declared in Cooper In¬
stitute that no soldiers should interfere when men vote. "What use
is it," exclaimed this gifted lawyer, "to give the purse and sword to
6
the House of Commons or Congress, if tlie King or the President by
military power can determine what shall be the constitution of the-
Commons or of Congress?" Or is the veto to be simply used petu¬
lantly, to show Congress that the President cannot be coerced into
doing right? If so, where is the reason or pretext for the veto of
separate bills.such as we send him? _
Is it said that the veto is given to the President to defend his office
from the encroachment of Congress ? Who proposes thus to encroach,
by these repealing acts ? Wherejdoes the President get the power to
encroach on the States, by troops or supervisors at elections ? All'
power of that kind, if it be constitutional, has been conferred by
Congress; and is it not repealable by Congress ? All who understand
the object of the veto, must know that it is intended to check hasty
and inconsiderate legislation, and not to be often used. It should be
kept, like the diamond shield of Prince Arthur—which was under a
veil, and which to " wight he never wont disclosed," except to fight
monsters.
representative government endangered.
Beneath these superficies of politics there lies a meaning that does
not meet the eye. It concerns the very structure and spirit of our
frame-work of freedom.
An English writer, James Mill, in speaking of Plato's republic and
his politics, says that the ancients were ignorant of the divine prin¬
ciple of representation. To produce good government and happiness
for states Plato had recourse to extraordinary methods; and though,
he failed as a ruler at Syracuse, he made the world of intellect radi¬
ant with his ideal commonwealth. More than a thousand years after-
Plato had speculated, men like Simon de Montefort made the practical
and grand discovery which illustrates modern civilization. It is the
representative nature of goverument. Since then, it has been roughly
handled, but it has survived the revolutions of England, France, Spain,.,
and Germany. Even after the barons failed to hold the King in check,,
no King of England was found great enough to overturn this system
except for a time. The Stuarts went out from the roster of English
royalty, because of their assaults upon the supreme power represented
in the Commons. The chief features of our constitutions and bills of
rights were drawn from these conflicts between prerogative and priv¬
ilege. Those who contend for the privilege in America, to-day are-
the democracy. They have the magic ring, on which the genii of
Liberty wait.
privilege and supplies.
We assert the right of withholding supplies until grievances are
remedied. The consummate flower of this historic struggle in Eng¬
land bloomed on the 3d of July, 1676, about one hundred years be¬
fore our Declaration of Independence. It deserves to be written with
a diamond pen. It was adopted by the Commons, aud is not unwrit-
tep law. It is as follows :
All aid and supplies and aids to Her Majesty in Parliament are the sole gift of
the Commons; all bills for the granting of such aids aud supplies ought to begin-,
with the Commons; it is the undoubted and sole right of the Commons to direct
and limit and point the end, purpose, conditions, considerations, limitations, and
qualifications of such grants, which ought not to be changed or altered by the
House of Lords.
The Irish Parliament maintained this right. No better statement
of it has been made tban that of Mr. Currau on the 16th of Decem¬
ber, 1783, on moving that it was the exclusive privilege of the Com¬
mons of Ireland to originate money bills. He said:
And if the right he once given up or wrested from the Commons they cease to,
7
be the patrons and representatives of the people; another assembly will assume
that power and the people will learn to look for that encouragement and support
from the aristocratic which they now receive from the democratic branch of the
state, and this house will become a very cipher, and its members, instead of pos¬
sessing the power of encouraging arts, rewarding merit, or, in a word, of serving the
country, will become the humble solicitors of another assembly. (Irish Eloquence,
It is the rule of our own Constitution as the debates in our consti¬
tutional convention show. But this I have fully discussed in a former
" dead-lock."
However obnoxious, in a philosophic sense, riders upon appropri¬
ation bills may be, they are justified when -great representative prin¬
ciples are in peril. Do gentlemen believe that such riders are in¬
valid in the light of our history ? To be sure they never became
common, for every variety of legislation from a subsidy to a back¬
pay job, until republicans obtained power. Was not the Wilmot
proviso, in 1846, placed on the Army bill of three millions for carrying
on the war with Mexico, a rider ? It was intended to stop the exten¬
sion of slavery into any newly acquired territory. It was held by
the House—ayes 92, noes 32—to be in order. The rider on the Army
appropriation bill offered by John Sherman in the summer of 18f>6is
a case in point. It led to an extra session. In it was involved, the
use of the Army in Kansas. Did not the leading reppblicaps, like
F.essenden, Hale, Wade, and Seward, insist that it was based on the
principle of the British constitution, ever jealous of standing armies
and ever inclined toward civil supremacy ? 11
It is not a new question, but it is a plain one. It has had its an¬
swer on both sides of the Atlantic. The colonists fought about it.
The King of Great Britain was indicted in the great Declaration be¬
cause he kept in time of peace standing armies without the consent
of the colonial legislatures and because he would make the military
independent of and superior to the civil power. How often are we
to fight over again the same question ? Or is it the fate of republics
like, our own to be ever vigilant for liberty ?
USE OF EIDERS IX EMERGENCIES.
Gentlemen dwell upon coercion and constraint by the House upon
the Senate and upon the President. Is he not as free to act as we
are ? There are cases involving organic principles of public conduct,
where the coercion taught us by the British constitution by with¬
holding supplies, may be drawn into valuable analogy. It is not only
justifiable but dutiful. Can there be anything more important to
the people of this country than the trial by jury, of, as Blackstone
calls it, "the trial by the country ?" If the importance and fairness
of fair jury trials could be enhanced, is it not when associated with
free elections and when voters are freed, when arrested by partisan
spite and hate ?
IMPORTANCE OF THE BALLOT—COMMON-LAW RIGHT.
On the Army appropriation bill, I remarked that to deprive a man
of his vote gave the debarred voter a common-law right of action.
I then referred to a famous decision of Judge Holt. Since that, time
I have looked up that decision. It is the case of Ashley us. White et
alios, reported by Lord Kaymond, 938. One of the dissenting judges
in that case held, that the action was not maintainable, because it
was primes impressionism Never, they said, was a like action brought
before! Another of the dissenting judges held that it was a little
thing to lose a vote, and the law did not care for such small affairs.
Other reasons were given, but the case grew so great as to draw the
8
historic pen of Hallam. It was finally decided in the House of Lords
50 to 16—against the " enervation of the privilege of voting." The
old common-law equitable action on the case was held to lie against
any one who contrived to damnify the voter, by hindering and disap¬
pointing him of his privilege. This may have been the first step in
the path of vindicating this important right of voting without hinder-
ance. It was vindicated, and in the courts, but long anterior to the
right, were the statutes and customs of England against using force
at.the polling places.
In England, as in this country, this right was founded upon stat¬
utes. In England it was even a part of their feudal system con¬
nected with boroughs, with tenures annexed to the various condi¬
tions and privileges in the English realm. The eminent judge who
gave the opinion in favor of the freedom of the elector could not
have added more emphasis to that opinion even had he looked into
the future and comprehended the enormous abuses practiced in our
own country. Holding that every man who had to give his vote to
the election of members to serve in Parliament had a several and par¬
ticular right in his capacity as a private citizen or burgess, he ex¬
claims with an eloquence unusual to the bench—
Surely it cannot be said tliat this is so inconsiderable a right as to apply that
maxim to it, de minimis non curat lex—a right that a man has to give his vote at the
election of a person to represent him in Parliament, there to concur to the making
of all laws which are to bind his liberty and property. It is a most transcendent
thing and of an high nature, and the law takes notice of it as such in divers statutes.
After reciting those statutes, and after showing that the damage
might not be merely pecuniary, (though any injury imports a damage
when a man is hindered of his right,) and after an ironical sneer at
the suggestion that it does not belong to the law, but belonged to
the omnipotence of Parliament as a thing of which the courts should
be very tender', he boldly strikes through all the meshes which had
been thrown around the case, overcomes all the impediments which
the Commons, the dissenting judges, the tories, and even the queen
herself had placed in the way of judicial duty, and lifting aloft the
scales of English justice equipoised, exclaims : " Let all people come
in and vote fairly. It is to support one or the other party to deny
any man's vote. By my consent, if such an action comes to he tried
before me I will direct the jury to make him pay well for it. It is
denying him his English right, and if this action be hot allowed, a
inan may be forever deprived of it. It is a great privilege to choose
such persons as are to bind a man's life and property by the laws
they make." If on this point the Lords of England could defy even
the Commons and side with the courts; if they so defied them, as to
sue out habeas corpus to release those from Newgate who had brought
suits in the courts for their right to vote ; if this case has given the
law to two continents in favor of that transcendent right, why should
we hesitate, in this unfeudal land of franchise and freedom, to give
adequate protection not only by fair jury trials and local statutes,
but by keeping far and aloof the military who may be used to keep
the peace at the polls and the supervisors and deputy marshals who
are present for espionage, intimidation, and hinderance ? Why should
not every man who is prevented by supervisors or other officers
have his remedy in the courts against the Federal officers ? If the
franchise be a sort of property, is not its taking away, robbery ? Why
should our statute-book be still encumbered with laws which lead
to litigation and which were made under pretense of war powers and
born of the passionate zealotry of civil conflict ? To rid the country of
9
all such obnoxious statutes extraordinary methods may be justified
on the plea of highest duty.
COERCION.
A good deal, Mr. Speaker, has been said-in this debate about coer¬
cion. If it be anything, it is in exercising the right of the House,
whence all money bills originate, to pass an appropriation bill and pre¬
sent it to the Senate with, such conditions as they may choose to affix.
Since the Senate is now in accord with the House in their policy, this
species of coercion no longer exists as an urgency upon the Senate.
As to coercion upon the Executive, if there be any, it consists in our
choosing our own practice. We make our own rules under the con¬
stitutional authority for that purpoSe, and it belongs to nobody but
ourselves to say what those rules shall be. But is not this coercive
feature obviated by the form in which the army-election bill is now
presented, independent of the appropriation bill ? Where is the coer¬
cion now ? If it be said we have a rear thought and an ulterior design,
and intend, if the present bill against the use of the Army at the polls
be vetoed, to withhold the Army appropriation, may it not be said in
reply, that we are the judges'of the order as well as method of out
own procedure? If two bills are before the Executive for his ap¬
proval, has he not the same right to determine the order of their con¬
sideration without compromising or influencing us? Where, then,
does the question of coercion appear ? First, we offer to the execu¬
tive department the supplies for an army of twenty-five thousand
men. We have coupled it with a condition that that army should not
be used for forceful purposes at elections. The Executive rejects that •
tender of the money of the people, which it is our duty to grant, in
our own fashion, because we do not allow him to compel by arms the
choice of the people in choosing us. If there be any coercion in the
matter, it is in the compulsory process from the Executive. It takes
this form : " I, the President, choose to starve the Army, to disband
it, and to allow no protection of the frontier or against the red enemy,
unless I have the right also to move that Army at pleasure, upon the
polling places of the people."
But even this pretense of starving the Army by the withholding
of the'appropriations, on conditions which we have a right to fix,
is groundless; for do we not know that this same Executive, when
the Army bill failed before, kept the Army alive, after it was le¬
gally disbanded by the failure of the appropriations ? How was it
done ? By make-shifts and illegal processes, and by drawing on the
future forbearance of Congress. There was no arraignment of the
President for that. The Army was thoroughly supplied until an extra
session of Congress was called. To be sure, it was unconstitutional
and illegal; and if we had had a tithe of the spirit of the Long Parlia¬
ment and the old Puritans, impeachment would have been instituted,
and even consummated, for such truculent and audacious disregard
of law. So that when men talk about starving the Army it is well
to consider what has been done. Who doubts but that the capitalists
of the country will readily cash the drafts of our Treasury, for mem¬
bers of the other side, in case the legislative bill should fail ? Already
it is understood that the Pacific bonanza kings will pour out their
wealth, to line with silver, the clouds which may darken their hopes
of salary.
STANDING ARMIES.
What then ? Where is the great loss ? There is not even the bar¬
ren apology of avarice, to justify the cry of coercion and revolution.
But suppose for a time there is no standing army, or one of the size
10
contemplated, with its cost-, is it to be regretted so poignantly . _ The
Committee on Appropriations did more than their duty, in my judg¬
ment, in giving U3 an Army of twenty-five thousand r^ea' . fitter
allow our pioneers, who understand Indian fighting, to-do this
upon our border and in the Indian country, than to keep alive this
Army, if it is to be used to destroy the free choice of the people. The
people of this country are not so much attached to an army of this
kind as gentlemen suppose.
SMALL ARMY IX EARLY DAYS.
It was not the earlier practice of the Government to have much of .
a standing army. When this Government began—after our peace
with England, when we numbered about three millions—on the 2d
day of June, 1784, Congress directed all the troops to be mustered
out except twenty-five privates to guard the stores at Fort Pitt and
fifty-five to guard the, stores at West Point. They were to have an
appropriate number of officers; no officer, however, to be above the
rank of captain. On the 3d of June, 1784, a peace establishment was
fixed by resolution of Congress. It provided for seven hundred men
only—one regiment—eight companies of infantry and two of artil¬
lery, for securing and protecting the western frontiers of the United
States.' Then we had a turbulent border, but no more need elsewhere
for a standing Army than now.
ACT OF 1861-1865.
Under the act of July 29,18G1, the Army was first used at elections;
it was so used down to 1865 in the border States. When in 1865 the
bill was passed to "keep the peace at the polls," it was not with dem¬
ocratic help, though so alleged here. Mauy republicans refused to
vote for it and democrats voted against it. It gave a pretense to
General Grant to interfere. The democrats could not in 1865 get all
they wanted; but they got all they could, to relieve the polls of the
bayonet. It is not uncommon in political affairs, when they are
wisely conducted, for statesmen to practice on the half loaf or no
bread principle. Daring the debates in the English Parliament for
the amelioration of Ireland, in 1844, it was said, " Why did not the
Catholics, who in 1757 and 1792 were seeking the removal of penal¬
ties, complain of the Established Church ? " It was well answered,
because it was not the ordinary progress of opinion; and that all
grievances could not, at once, be remedied. Did we begin here in
America to abolish slavery altogether ? No; the slave trade was the
initiative. So in the relief of the voters from the Army; we did not
get what Governor Powell wanted, but we got what we could at that
time.
PARTISAN ELECTION LAWS.
The obnoxious statutes as to elections which we seek to repeal
were placed upon the statute-book for partisan purposes. They were
intended to perpetuate 'party power. They were intended to fetter
the white race in the South and reduce democratic majorities North.
There was no demand for them, from the cities affected, or from the
people; nor have any class outside of the cities affected asked for
them. 'They were intended as a party whip and fund. Their repeal
is demanded because they are capable of perversion and because
they are a cloak for fraud and a provocation to violence. Tifhy de¬
face the statute as they discredit and distrust the will of the people.
They were bad in their begetting, and bad things go on invariably to
worse. Their repeal is complained of as if it were intended to foster
fraud or perpetuate force. Who complains ? Is it the party who, in
11
spite of all professions and in defiance of existing laws, levies an
installment on Government officers at every election to bribe voters
in doubtful States?. Is it the party which sends its thousands of
clerks from Washington to their homes to distribute and vote their
tickets ? Is it the party which has used hundreds of thousands of
dollars out of the public Treasury to hire its riff-raff marshals and
supervisors to suppress and control the franchise ? Whence come
these complaints ? Does not the burden of them come from six; New
England States, with their population of three million five hundred
thousand and their twelve Senators in Congress, which would enact
such laws for New York, with its population of four million five hun¬
dred thousand and only two Senators ? Is it from little Rhode Island,
where poor white, men are disfranchised by the thousand, because
they do not belong to the property-holding class? Is it the party
which now clings to a system of forced ballots and test-oath juries,
when they see their power is departing1? *
Is it said " that the democracy has not suffered by the existence of
these so-called paternal Federal safeguards at the polls, and that we
are solid at the South and strong in the cities North ?" It is often so
said ; and then it is added, "How could you succeed if such clamps
and shackles were on your limbs?" Ah! we succeeded in spite of
them. Your party is in a minority here, in the Senate, and in the coun¬
try. It was made so, notwithstanding such infamous laws of force
and cunning which we seek to destroy. Two persons once disputed
as to the laws under which Charles I was executed. It was settled
by the reply: " By all the laws he left them." So it may be said of
the republican party; they were beheaded by the very laws they
themselves left, after their long riot and plunder of the prostrate
South and their attempts at forceful control in northern cities.
NEW york election's.
When this appropriation bill and its rider were before the House
last session, the gentleman from Maine [Mr. Fkye] sustained the char¬
acter of Mr. Davenport and his public conduct with regard to New
York elections. He quoted from the report which I made as chairman
of the committee to investigate alleged election frauds in the cities of
New York, Brooklyn, and Philadelphia, submitted to the House in 1877.
I was not present wheu his remarks were made, else I should have
answered him promptly. This session my colleague, [Mr. McCooic,]
With others, has given out the same erroneous impression as that made
by the gentlemau from Maine. So, too, a Senator from New York and
Senators from other States have drawn on this report to sustain the
legislation we would repeal. That impression was, that I commended
the law under which Mr. Davenport acted, or at least commended his
official conduct under it. To correct that impression pertinent ex¬
tracts from that report, not garbled or partial, are necessary.
But first, as to the history of this legislation as it affects New York.
When this law appeared in this House in 1870, and its supplement ap¬
peared in 1871, I opposed them by vote and speech, and in the report
of lr?76, I took good care to give credit iot its execution that year as
approximating as near to perfection as possible. There were no fights,
no bayonets, no disturbance^ no conflicts of authority, none of the
concomitants which accompany fraud and endanger free institutions.
It was as unlike the elections of 1870 and 1872, 1874 and 1878 in New
York City as the elections in Philadelphia are unlike those of New
York. Compared with other elections in Philadelphia and elsewhere,
it was distinguished by its fairness. In that report I said:
"Whatever may be said about the United States law as to elections or their su¬
pervision by United States authority ; whatever may be said as to the right of a
12
State to regulate in all ways such elections, this must he said, that the administra¬
tion of the law by Commissioners Davenport, Muirhead. and Allen, the United
States functionaries, and their subordinates, was eminently just and wise and con¬
ducive to a fair public expression in a presidential year of unusual excitement and
great temptation.
The report attributes the success in 1876 to the virtue, intelligence,
and citizenship of those cities and its various organizations of both
parties, and not to the law, nor wholly to the execution of the law.
What was the origin of that investigation ? It was a challenge from,
a (then) republican member from New York, General MacDougall.
He disputed the regularity and honesty of that election. I accepted
the challenge; and the committee was raised. New York that year
gave over tifty-two thousand democratic majority. This the investi¬
gation showed, while it proved that the charge of repeating and fraud
so glibly and falsely made against New York City that year was as
base as it was baseless, This the gentlemen accept now as true, by
quoting my report as correct. They confess to a slander upon the
democracy of 1876 by agreeing to my conclusions. Both republicans
and democrats agreed, what Mr. Davenport and the district attorney,
Mr. Bliss, concurred in, that the election was the fairest and best ever
had in that city. But to whom was the credit due for it ? Out of
the one hundred and eighty-three thousand registered, about three
hundred men were arrested and only thirty of them were held. Mr.
Davenport himself swore that in many cases of arrest the fault was
with the inspector and supervisor, and not with the voter himself.
But even then it was considered a sort of relief that only three hun¬
dred were arrested ; as there were fifteen hundred for whom warrants
were issued, and out of them only three hundred came to the polls.
Ninety per cent, of those arrested were allowed to vote as legal voters
after trial. This was our best election, under a special agreement all
round that it should be fair. Why was this election so exceptionally
gratifying? Why did Davenport testify to its regularity and fair¬
ness ? If so, why did he in 1878, after that testimony, begin to arrest
men who voted in 1876, under alleged, fraudulent naturalization
papers ? Either he was untrue in his story of the election of 1876 or
he should not in 1878 have arrested men for voting wrongfully in
1876. Perhaps I can solve these questions, without imputing to Mr.
Davenport anything sinister or corrupt, as did the New York Times.
The State of New York and the city of New York were prepared with
their civil force and their militia to repel unjust interference in the
election by Federal force or otherwise. A conflict was impending in
1876, as in 1870. The better class of citizens of both parties agreed
upon a plan of action. The Federal law being unrepealed and about
to be executed, under fierce excitements, an understanding, after
much parley, was had between the Federal and State officers and the
city police, so that every precaution against fraud and force, illegal
registration, voting, and arrest was taken. Let the report speak on
this point:
The United States commissioner, along with the mayor of the city and the presi¬
dent of the board of police, General Smith, had a meeting to allay any excitement
occasioned by rumors which always precede an election. The United States mar¬
shal, district attorney, and the counsel of the corporation of New York were called
in. They were men of various politics. They came to an agreement, which was
signed, so as to execute the law without straining it, and so as to adjudicate with¬
out irritation or impediment the questions which might arise during the day of
election. Throughout the whole length of New York—sixteen and a quarter
miles—arrangements were made to prevent bringing men any distance from their
homes or the polling place. The commissioners were distributed over the city, and
from early morning until after the polls closed cases were taken before them, and
information given by them as to voting. Your lawyers were selected—General
13
Barlow, Mr. Alderman Billings, Mr. Marbury, and Mr. Olney. They, too, were
equally divided as to politics, and the rule was adopted that whenever they found
a reasonable and well-founded doubt as to a person being a legal voter, the voter
should get the benefit of the doubt, so that he could take an oath under challenge,
and have applied to him by the inspectors the test of the law. It was intended to
provide not only against fraudulent votes, but that no person really entitled to a
vote should be refused. The political organizations concurred with Mr. Daven¬
port in this arrangement. It proved a decided success, and the result was, what
all who have any knowledge of this New York election have concurred in confirm¬
ing, that there was comparatively no fraud, and the attempts made to repress it
were welcomed by both parties and carried out in good faith.
*******
So that, as a compendious statement resulting from these prudential measures,
it may be said that out of 183,000 registered voters, only fifteen hundred warrants
were required against those suspected of fraud ; and out of those fifteen hundred,
for whom warrants were issued, only three hundred came to the polls. Those
three hundred were arrested, but they were generally of a class which has a right
to vote. '
* * *****
The committee does not mean to justify the publication of the names of those
who are thus advised that they will be arrested, for there may be many honest
men in the list, who, apprehending arrest, may lose their honest votes. But, in
spite of these harsh measures, which may deprive some of the franchise, the com¬
mittee are decided in the opinion that the result is an astounding one, where out
of 183,000 registered only about three hundred men were arrested, and only thirty
of them were held. 1
Whether this work, which is unexampled, should be accounted a republican,
work, through their Federal election law, or the work of the local authorities and
organisms, inspired by a desire for an honest vote among the people, who were es¬
pecially jealous of it on account of what was occurring elsewhere, one thing the
committee must report, that it approximated as near to perfection as it was possible
to do.
There is no justification in this report of this law, nor of its pre¬
vious execution. As my name has been invoked in Senate and House
as one worthy to be quoted by republican gentlemen, I add the state¬
ment that subsequent elections have shown the comparative fairness
of the election of 1876 either to be the result of exceptional goodness
that year on the part of Mr. Davenport and his allies, or, as the New
York Times charged, the result of some occult perfidy on his part to
the republican party, that seemed to demand of him every year the
atrocious abuse of his powers.
This official whose friends boast that in this one year, 1876> he acted
fair and told the truth, reminds me of the culprit who was about to
be hung. When the clergyman asked him if he could not recollect
at some time or other doing one good action, after much hesitation
and regret, he replied: " Ah, yes; once—that was to let a fellow go
whom I ought to have dispatched." Like Davenport, he was regret¬
ful and troubled for doing one good thing.
Arrangements, as thus appears, were made by which those arrested
should be tried at once and relieved if not guilty. All excitement oc¬
casioned by rumors of conflict which preceded the election were thus
allayed. The United States authorities and corporation counsel of
New York, the president of the board of police—men of various poli¬
tics—came to a written agreement, unofficially, that the law as it
stood, for good or evil, and as about to be carried out, should be exe¬
cuted without straining it. They consented, for the peace and safety
of the city, to adjudicate promptly all matters in dispute at the polls.
Throughout the whole length of the city, the compact thus made to
prevent bringing men from their distant homes to the polling places
was honestly adhered to. Commissioners were distributed over the
city for that purpose. The four lawyers selected frOm both parties
attended to this voluntary business. In all cases of doubt the voter
got the benefit of the doubt, so that his vote was given.
14
The Federal officers were not exactly coerced into'this arrangement;
but they faithfully concurred in it. This the report frankly com¬
mands.
What peculiar and hidden reasons there were which led to this
amicable and just arrangement, and deference to local authority, I do
not now state. Some attribute it to schemes and bargains to keep cer¬
tain men in local offices. However, it is true that many New York re¬
publicans bitterly denounced Mr. Davenport for his honesty that year.
They charged that he lacked fealty to his party in giving the democ¬
racy a fair election ! It was more than hinted that he had been pur¬
chased by the democratic leaders. I do not accept this explanation. It
is not necessary to account for his exceptionally good conduct at this
election on such grounds. Every one knew that New York was
thoroughly democratic then, as it is to-day. There was no hope of
carrying it for the republicans then, any more than there is now, un¬
less by a corrupt combination of democratic factions with the de¬
bauched opposition. This was accomplished in 1878 ; and a part of
the plan was the arrest of naturalized persons, which led to great
abuses, and complaints on the part of the regular democracy of mani¬
fold outrages. These complaints led to another investigation by
Judge Lynde's committee, hereafter referred to.
Was I not right, therefore, in vindicating, even by Mr. Davenport's
■evidence, which he tendered voluntarily, an election which Vas so
thoroughly fair and democratic; especially when taunted with its bad
character by our enemies in that Congress ?
How unlike that election was the last one, when no such friendly
arrangement was possible, though it was again attempted by the de¬
mocracy. That such an attempt was made last year is evidenced by
the statement from Colonel Wingate in the New York Sun of April
16, 1879, wherein he says:
In May, 1878, in pursuance of a request from Commissioner Davenport asking
for a committee of lawyers to confer with him in relation to the naturalizations of
1868, Tammany Hall had appointed Judge Quin, Mr. Cozzens, and Mr. Purroy.
"Upon consulting with Mr. Davenport, it was found that he was inflexible upon the
point that all the 1868 certificates were void on account of the defect in the record
kept by the clerk. The committee denied this proposition (taking the position as¬
sumed by Judge Blatchford) and therefore found it impossible to act with him.
They thereupon established a burean of information, and gave public notice re¬
questing all persons having doubts about the validity of their naturalization certifi¬
cates, or who had been imposed upon in relation to tliem, to call there and have their
cases investigated, and published the United States lawas to what certificates were
invalid. A large number of persons called at this office, whose papers were exam¬
ined, and, if found defective on account of any actual fraud or improper act, steps
were taken to renaturalize those holding them.
No such arrangement being possible, the democracy did all in their
power to correct any irregularities and frauds of 1868, and to avert
the subsequent arrests and arbitrary conduct of the chief supervisor.
The sequel will show how vain was their attempt.
COMPARISON OF PHILADELPHIA WITH NEW YORK.
How unlike the Philadelphia election of that same year, (1876,) when
and where there was an excessive registration of from twenty-five
to thirty thousand,—was the New York election of that year. There
no amicable arrangement that year was made with the local authori¬
ties for fairness, for the local authorities were republican, and it was
one-sided. What a commentary is the comparison between New York
and Philadelphia! The latter city, with a population of about eight
hundred thousand, had a registration of one hundred and eighty-six
thousand; while in New York, with the population nearly 50 per cent.
15
greater, the registration was but one hundred and eighty-three thou¬
sand ! What a commentary is it, that over twenty thousand names
registered "were successfully attacked and the names stricken out by.
the courts! Nine-tenths of those were attacked by democratic peti¬
tions. Over eight thousand of those ou. the Philadelphia list were
jnyths, "stiffs," men of the grave-yard, whose names were used by.
repeaters and personators. Was not the committee justified in its
assertion, that Philadelphia, not only for 1876 but for many years,
was-a monstrous exception,-inasmuch as there was a "system there
fixed and crystallized for bad franchise," and that the Federal super¬
visors themselves aided these frauds ?
NEW YORK STATE JjAWS AS TO ELECTIONS.
Do gentlemen know what safeguards the New York State laws
throw around the polls? Do they know what a careful code N<rw
York has, or how a New York election is conducted ? Or will they
take the slanders upbn that city uttered in the press and repeated re¬
cently by the Secretary of the Treasury at his Ohio home ? Misrepre¬
sentation can only recoil on him who makes it. It does not stifle the
truth. He who gives a false statement and deduces conclusions from
it, only answers himself.
Why, sir, the Sabbath day is not more quiet than election day in
New York. It is the holy day of our sovereignty. The State laws
require inspection from both parties, police supervision, registration,
and every precaution against militia or military presence or control.
They forbid, under penalties, the calling out of her troops on election
day, or within five days prior to election day. Courts are not held
on that day. The cases of insurrection or invasion are an exception.
All saloons are closed; the tickets are distributed from booths aloof
from the polling place; the polling place is guarded by police from
intrusion or ro.wdyism ; glass boxes are used for the various tickets,
sometimes six or eight in, number, according to the various offices.
The registry, previously taken on four separate days under great
precautions, is examined for every man who appears ; and when he
votes his name is checked; he sees his ticket dropped through the
glass, and he knows at least that it is in the box. No complaints of
late years have been made of fraud in connection with the counting,
at jeast since I have lived in New York. Barely have we contested
elections, even in local politics. Fights, rows, drunkenness, and vio¬
lence are hardly known on election day. Slanders, such as have been
uttered about that city, of its rum-shops, slums, and lazar-houses, pour¬
ing forth their reeking influence, spring from the baldest ignorance.
And yet it would appear, as was charged here when this supervisor
bill first came in, in 1870 and 1871, that it was directed solely against
New York, because of the ineradicable corruption by which the city
always voted democratic.
NEW YORK—THE SHINING TARGET.
That democratic city seemed to be a shining target for the aim
of radicalism. There was malevolence enough in Congress, during
the first few years after the war, against that island city to have
sunk, it in its 'harbor; but such malevolence is limited, though not
always impotent. It was not enough to discriminate by legislation
against its commercial and other interests, but you must send there
Army and Navy and a cohort of spies and paid canvassers. Never
was there such a collection of lazzaroni under the pay of King Bom Da
in the worst days of Naples, in 1350-'51, as Davenport gathered for
1G
the execution of your Federal laws. When in 1H711 referred to them
I only produced facts patent to all when I said :
After all this preparation of force the object failed. The democracy carried city
and State, and the State outside the city. Why ? Because of the corrupt practices
and unjust conduct of the Federal officers in the city. True, many voters were
intimidated and failed to register; but their places were taken by the hitherto in¬
different but then indignant citizens. The mayor, ever prompt for the honor and
fame of the city of his birth and choice, and desirous of a fair election above all
things, made a list of officials, to be presented to Judge Woodruff. They were men
representing the democratic party under one provision of the law. The list was
made up of men of business and respectability. Every one of the list had his
address in the directory and affixed to his name in the list. They were scrutinized
and indorsed by two eminent attorneys—one a republican, Mr. Stoughton, (since
minister to Russia,) and the other, George Ticknor Curtis. This list was handed
to the judge. The mayor in person urged their selection. Instead, however, of
selecting from each party an equal number and taking this list as the democratic
portion, what did he do ? He rallied the bad houses and slums ; he selected, as
Governor Hoffman demonstrates, the thieves, bullies, vagabonds, blackguards, and
cut-throats, men without business or character. He skimmed from the boiling
caldron of venal politics and crime the very scum of New York City as Federal
agents of registration and election. This was done to make a pure, fragrant elec¬
tion—Lord Holt's " transcendent thing! " He had selected those who were morally
afflicted with that wholly incurable disease, vermin-gendered, called trichinosis.
Lists of this crew of Federal appointees appeared in the papers. The correctness
of their description was unchallenged. The police reports previously and up to
and after the election furnish the various qualities for an official under this judicial
execution of this injudicious law. Wife-whippers, penitentiary-birds, and street
vagabonds, beastly bloats, and convicted felons thronged Chambers street, three
thousand and more, for some days, fighting and swearing for precedence to get
their Federal commission aDd their fees under this sort of legislation. I saw this
"rakehelly rout of ragged rascals," more detestable than
" The race obscene
Spawned in the muddy beds of Nile."
They polluted the very gutters in front of the Federal officers. They drove the
marshal wild with dismay and excitement. "These, these," he might have been
heard to say and sing, "these are the champions of republican ideas; these are to
purify the ballot; these, in Whittier's words, in his song " On the Eve of Election,"
are the powers that stand guard about empire's, primal springs, the uncrowned
American kings:
" The mold of fate that shape the state,
And make or mar the common weal."
But with all the spiteful and disgraceful exercise of unconstitu¬
tional and proscriptive power, you could not and you cannot drive or
cajole the voters of that city. Its merchant princes and skilled me¬
chanics, its masses are democratic on principle, and no threat can
change their politics. Your laws have been framed to do by chicane,
stealth, force, and threat what you could not do by reason and per¬
suasion. They have been aimed at both adopted citizens and the
native-born, but especially the former; but your endeavor has failed.
Although you may cut down our vote a few thousands, other thousands
will spring to take their places. You may thunder your philippics
against the vice-breeding city. Your thunder is hrutum fulmen ; it
has no stroke, no lightning.
There are some men so constituted that they cannot see anything
good, even though it be under their eyes. The radical purist, when
he visits New York, judging by his distorted and prurient pictures,
has been inspired by the paramount desire to look after that which
is not proper. He forgets that what he does see is not normal to the
condition of that charitable, intelligent, and wealthy metropolis.
He sees the ulcers, the spots on the skin, but not the good heart, ele¬
gant tastes, and splendid enterprises which make it the peer of any
city of the world. Its register of crime shows the worst kind of
17
crimes, rape, murder, burglary, and larceny, to be those committed
by emigrants from other regions, like New England, where people are
more cold and crafty; while many recent cases show that the venial
oftenses, assaults, mayhems, &c., crimes that grow out of passion, are
more frequent with those who are either native to the city or alien.
If gentlemen who visit New York will forget that is the entrep&t of
our commerce, that nearly one half of our exports go from thence to
all the world; if they must go to the pestiferous and. foul dens of that
misjudged city, they will find the class of people who are used by the
Davenports and others under this law which we now seek to repeal.
They will then learn to discriminate between that licentiousness which
belongs to the Federal gang and the honesty of the democratic voter
whom that gang are hired to harass, threaten, arrest, and cage.
When this law was before Congress for discussion in 1870, I pro¬
phesied then—even then when the republicans had the police of the
city and all the power to control and arrest all whom they alleged
to be the repetitious and fraudulent voters—that we would add fur¬
ther to the democratic strength. All the spies, informers, supervis¬
ors, and marshals have not been able and never will be able with all
the penalties and posses of the supervisor law to change our democ¬
racy. The prophecy was fulfilled. Whether the law be honestly or
dishonestly executed, it is only a matter of majority. Not all the
money spent recklessly and fraudulently from the Federal Treasury,
amounting, as we will see, to its hundred thousands, given out with¬
out voucher and spent without accounting to defeat democratic Con¬
gressmen, accomplished no result until an infamous coalition for
local spoils, already dissolving by its own putrescence, was effected.
There is a purity, courage, and integrity in the vote of that city not to
be slandered without rebuke. Ah ! if gentlemen knew the inner, daily
beauty of its generous humanities, and the benefactions of its noble
institutions to the widowed, orphaned, blind, deaf, insane, houseless,
and unfortunate, which has won for New York the proud name of
" city of charities," even partisan hate would forget its malice to ad¬
mire and hless! The more you exert your Federal power to provoke
collision, the brighter its fame grows. The greater the abrasion the
more it is burnished. When you make Spartans out of the black race
South, then you may, by your Federal laws, make Helots out of the
white race of New York.
It has been my pride and pleasure, Mr. Speaker, to have repre¬
sented three districts in different parts of that city,—not only the
rich avenues, but the homes of the toiling men ; not only the great
merchants who trade outland and inland and who deal in commodi-
ties and products by the million., but the small merchants and skilled
laborers have given me their trust. It is my special pleasure, as it is
my loving duty to that city, which has been so confiding and hospi¬
table, to represent to this House that the slanders which have been
uttered agains^ it have been exaggerated beyond human credulity. I
do not pretend that New York is free from all taint. Corruption is
incident to all large communities. Even gold has its alloy. But New
York is not the city which one of our Senators depicts. To him who
looks for the best, it is the city of goodness. No other city is compar¬
able with it, for unselfish devotion and generous deeds, in war or
peace, whether toward a flooded town of Hungary, a burnt city of the
West, or a fever-stricken community South.
NEW YOEK ELECTIONS, 1868, 1870, ETC
Much undeserved reproach has been cast upon the'elect ions in New
18
York in 1868 and 1870 and other years. To neutralize the source of
this falsehood about these elections, let it be known here, once and
forever, that the machinery of these elections then, in the city of
New York, was in the hands of police commissioners, each of them ap¬
pointed under a republican Legislature. All election oihcials were
named by them. No fraud was possible except by their connivance.
Tweed himself had no power to control New York City, except by
subsidizing and using the republicans of the New York Legislature ;
and this he did.
In 1870, at an important juncture, when Grantism was on trial, ap¬
plication wasmade to the President for troops; not by the city of New
York, nor by anybody in authority, but by irresponsible men of whom
Supervisor Davenport is a sample. One of their objects was, doubt¬
less, as Sir John Komilly said about an English statute, " a techni¬
cal system for the creation of costsfor they called for legislation
to aid their avarice. Another object was to frighten the voters of
New York by a show of Federal power. For this purpose the Secre¬
tary of War, Belknap, sent a communication to General Sherman
on October 27, 1870, instructing General McDowell to hold troops in
readiness for service during the election week. This was done os¬
tensibly to sustain the officers of the United States, in enforcing the
laws and to answer any call of the marshals for such purposes, and
at such points and in such numbers as the marshals might signify.
Then and there he gathered his troops; he even had his gunboats
in the East and North Rivers bearing on the city. There was no
law, organic or otherwise, for this movement. It was not under a
call, constitutional or otherwise. The Federal troops had no right to
invade that State under the circumstances. It was a provocation to
a breach of the peace. The peace of the polls had not been threat¬
ened ; not until these armed men appeared. The governor of New
York protested; he gave notice that such things should not go on.
Our splendid "National Guard" was ordered to their armories.
The Federal authorities began, after this sharp experience, to find
that there were two parties who could practice upon military prin¬
ciples. A collision with the troops openly was avoided; but the mar¬
shals appeared armed with our United States Navy revolvers. They
undertook to do superserviceable work for the republican party.
The rowdies of the city, two thousand of them, discharged convicts,
felons, the worst men of the metropolis, were armed with this tyran¬
nical power. Had the Federal troops, without being asked, appeared
on the streets of New York, as was threatened on the 8th of Novem¬
ber, 1870, election day, there was the National Guard with one hun¬
dred thousand ball-cartridges and four hundred rounds of canister
shot, with cartridges for the artillery, ready to receive them. They
were prepared then, as they will be hereafter, to protect the freedom
and peace of the Empire State at the polls. This detail as to arms
and cartridges is from the report of Adjutant-General franklin Town-
send to Governor Hoffman. We all prayed that wisdom and good
sense would avert the necessity of their use. By some instinct or good
counsel even the General-President Grant and his advisers became dis¬
creet. No Federal troops publicly appeared. They hid in halls and
breweries and worse places. But there remained the brood of super¬
visors and deputy marshals, such as I depicted in my speech in 1871,
and with them the infamous law which begat them and their masters.
The republican governor of Pennsylvania echoed the words of
Governor Hoffman, of New York, when, in his message of 1871, he
denounced the employment of troops in this manner in his own State
19
and yet we are told by gentlemen of the other party that these Fed¬
eral methods in elections are to be desired to prevent fraud and keep
the peace!
By section 2002 (Rev. Stats.) the number of marshals is indefinite.
In 1376 a number equal to one-half of the regular Army was ap¬
pointed and paid. They are both judges and constables. They de¬
cide as to " order" at the polls and as to " fraud" in registration and
voting. They supervise State officers, and arrest, with or without pro¬
cess, at their pleasure. Could the subversion of the rules of right and
the guarantees of law go further ? Where is the right which lifts
these supple tools of a Federal Administration above the States and
the people ? Not a word of this enslaving and degrading statutory
system should remain.
Are we forever to be obliged to secure fair elections at the risk of
armed collision between Federal and State troops ? Must the States
always coax the President and his subordinates to make extra-legal
arrangements, so as to execute mildly the supervisor law and so as to
give an honest election ? What credit is due to the Federal Adminis¬
tration when we have to compel freedom by the display of the State
forces ? Must we rely on the forbearance of Federal officials and the
good sense of the citizens of both parties, to compel acquiescence in
decent methods in holding elections ?
STRETCHING THE POWER TO STATE ELECTIONS.
This extraordinary Federal power is used intentionally to affect elec¬
tions for State and local officers. Congress named a day for the elec¬
tion of Federal officers, Congressmen and electors, which was the same
as that for State officers. Why ? To use the Federal power over all.
What would affect or terrify the voter for Congressman or elector
would do the same for local officers. Sometimes it happened—as when
I was a candidate to fill the vacancy caused by the death of Hon.
James Brooks, in 1873—that only one Federal officer at one election
is to be chosen in a great city of a million, as New York; then, forth¬
with, the whole machinery of the United States supervisors and dep¬
uty marshals is brought into play.
The money accounts of John I. Davenport pertaining to this elec¬
tion are interesting. They are taken from the Caulfield report of
1876, (No. 100, Forty-fourth Congress, first session.) In this one dis¬
trict, where a coalition of republicans and democrats united upon a
democrat to defeat me the chief supervisor swore in four hundred and
sixteen subordinates in one batch. He filed three hundred returns of
the canvass where there were about one hundred voting precincts.
He actually charged $4,299.90 for indexing 28,666 folio index records
for this one election. This account was sent here to an honest Comp¬
troller ; but it was more than he could stand. He reduced the " error"
of folio indexes from 28,666 to 5,980; cutting down the amount at one
dash to $1,409.75, instead of $4,812.65. The Comptroller afterwards
wrote to this extravagant chief supervisor, under date of February
27, 1874, that he had only charged $11,999.15 for indexing the records
of all the city; and yet in this account for that odd year, more than
one-third of this sum was charged for one congressional district!
Considering that a lawsuit has developed the fact that my oppo¬
nent paid large sums, amounting to thousands, to one of his best
backers to be spent to defeat me; that my majority was nearly 7,000,
and that I was somewhat new to the district, the race was indeed a
success; for it was made against the United States Treasury, a street-
railroad president, and a piebald coalition. But in spite of these
20
and other unpropitious circumstances, the people confided their inter¬
ests to my keeping.
EXPENSE.
When so much is at stake, it is almost childish to discuss the ex-
pensiveness of the law and its execution. But this must he said,
that nearly all that is spent is lost, or used as a party fund, and much
that has been spent and paid to Davenport is wholly unaccounted
for. We have paid lavishly, from the hard-earned earnings of the
needy and the savings of the poor—who are most taxed and least
able to bear the burden—hundreds of thousands, and for what? To
subsidize, at $5 a day for ten days, the creatures of this atrocious sys¬
tem, and to keep in disgusting prominence a life-officer, whose only
function seems to be to glut his greed and give discontent to the people.
IS IT SECTIONAL IN ITS OPERATION ?
Is it said that this law was made only for the South. The figures
contradict the assertion, for in the North in 1876, $220,515.64 was paid
to these marshals, while in the South but $54,770.96. In 1878 $>24,-
636.74 was paid in the South, while $177,654.35 was paid in the North,
and more bills of thousands more are to come.
ORIGIN OF THE SUPERVISOR LAW.
When the gentleman from Colorado, [Mr. Belford,] on the 2d of
April, said that the pivotal point we were aiming at in the repeal of
these election laws was New York City, he was partially right; but
when he said that the barriers against fraud and violence were thus to
be swept away to carry tbat city and State, he greatly missed his mark.
Sir, the city which I represent in part, has been the special victim
of this law as carried out by the chief supervisor. It becomes almost
a duty, in the absence of any speeches by my colleagues from the
city, that I should analyze the law and give a true statement of the
action of Federal officials under it.
When the first law of 1870 was passed I denounced it, as I have said,
with all the vigor I could command. On February 15,1871, when this
law was sought to be supplemented by an act " to enforce the right of
citizens to vote in the several States, and for other purposes," I pre¬
sented the question anew in the light of its execution the year before.
I based my argument upon the rock upon which the Federal arch
itself reposed, holding that the Federal power does not and cannot
have or create the elector. Believing that he was the creation of the
State, and only recognized by the Federal Constitution as a State
elector, I maintained that he was only a State agency to carry out the
granted power given to the Federal system. This argument is founded
on the opinion of Judge Story as to the unconstitutionality and inex¬
pediency of any Federal law interfering with State suffrage. Hence
not only the original law but its proposed amendment in 1871 were
sheer usurpations. Its execution was the pernicious abuse of usurped
authority.
Since that time, Chief-Justice Waite (21 Wallace) has declared
that the United States had no voters, and that the elective officers of
the United States are all elected by State voters. Where, then, is the
Federal power which confers the elective franchise ? Whence the
authority for all these devices to strangle the public will ?
COLORED VOTER—A PRETEXT.
One pretense for the law at that time was that New York would
forbid the newly enfranchised colored vote. The truth was, that New
York had already followed the Federal Constitution and had enfran¬
chised the negroes by her own statute. They voted without hinder-
ance.
21
The facts pertaining to this election of 1870 will be fonxnl in my
speech in the appendix to the Congressional Globe, Forty-first Con¬
gress, third session, page 127.
NEW YORK FEDERAL OFFICIALS.
Governor Hoffman well said in his message of that year, that " a
large number of United States deputy marshals and supervisors were
appointed, many of whom were men of well-known disreputable char¬
acter, and some of whom had been convicted criminals, a class of dan¬
gerous men, never before chosen by any ruling authority in any com¬
munity as conservators of the peace."
Yet these were the men who undertook to arrest at the polls citi¬
zens who had the right to vote and who had voted for years. These
were the men who sought to arrest State inspectors who were charged
by law with the custody of the ballot-boxes. These arrests were to
be made without that process of law issued upon formal complaint,
required by the Constitution. The election of 1864, when Governor
Seymour interdicted Federal troops, like that of 1876, which'I have
described, was due to the firmness of the State authorities and the
compliance of the Federal Government. But we cannot be sure that
any year will give us this relief. Since that time, the State of New
York has been standing, with its hand upon sword—the sword of its
own chief magistrate.
When, therefore, my colleague [Mr. McCook] and the gentleman
from Maine [Mr. Frye] quote my report as approving of the practical
operation of that law in 1876, and infer from that year a general ap¬
proval, they confuse themselves, and mislead the public. With such,
an interpretation of that report, the many compliments which have
been given to me for my honesty in making it are meaningless, if not.
hollow. While I thank the gentlemen for their good opinion, I will
put it to the test further. In that report I stated that whatever may
have been the opinion about the conduct of elections in these cities,
or however they may be conducted in the future, that election of 1876
will stand as a monument of what good faith, honest endeavor, legal
forms, and just authority may do for the protection of the elective
franchise. This was an indication of what had been done before
under that supervisors law. It was a premonition of what might be
done in the future. I have shown what had been done before 1876.
The committee appointed to examine into the election of 1878 have
shown you what was done since 1876.
NATURALIZED CITIZENS PROSECUTED, AND WHY.
It will be observed that most of the proceedings in 1878, taken
against the electors in New York by Davenport, were aimed at the
naturalized citizens. According to the census of 1875, the number of
males over twenty-one in New York City were as follows: Natural¬
ized citizens, 141,179; native-born citizens, 90,173 ; aliens, 48,305;
total, 279,657. It is well known that the large majority of these natu¬
ralized citizens were democrats. How were they to be stopped from
voting ? What mode of arrest or intimidation could be used to pro¬
duce this result ? That was the problem which Davenport undertook
to solve. *
I dwell upon it because it concerns every part of the country. The
second section of the Constitution of the United States, in fixing the
qualification of electors in each State, requires only that they shall
be electors of the most numerous branch of the State Legislature.
In the various States of this country, there are various provisions as
to suffrage of naturalized citizens. Let it be remembered that there
22
are no Federal elections. They are all State elections, and it is an
anomaly for a United States supervisor or marshal to carry out State
election laws. When these laws, therefore, in our States allow sim¬
ply a declaration of intention on the part of the alien to make him a
voter, as in Colorado, Georgia, Kansas, and Nebraska; or a residence
of six months, as in Alabama, Arkansas, Missouri, Florida, Indiana,
Oregon, Texas, and Wisconsin; or a residence of twelve months, as
in other States, to qualify the foreigner who is a citizen; is it not un¬
just to give to a Federal officer the power to discriminate against the
naturalized citizen, under some supposed power in the Federal Con¬
stitution ? All such laws, therefore, as interfere with elections or
with the elector and his qualifications or his certificate of naturaliza¬
tion are unconstitutional. When, therefore, Davenport conceived the
idea of disfranchising New York, he struck at the certificates and upon
the ground that fraud had been perpetrated in 1868 in granting nat¬
uralization. He made it a pretext for a general raid on all natural¬
ization from 1858 to 1873. The boldness and extent of this coup is
understood, when I say that, under the law and "by the method of
naturalization in the courts of New York City, forty thousand citi¬
zens, including over one thousand women, had been naturalized be¬
tween these years.
The inconsistency and iniquity of this attempt to render null the
naturalization of so many thousands is so well stated by Judge Freecl-
man, in his decision on the application for an order nunc pro tunc to
perfect the record, that I quote from it:
That sovereignty has a right to command his person, his time, his property, and
to establish the condition of his domestic relations and the rule of succession for
him and those dear to him, is a vital question for every man. "What civil and po¬
litical rights he possesses, and to what sovereignty he must look for protection,
depends upon his status as a citizen. If these forty thousand persons did not legally
become citizens of the United States, and by virtue thereof citizens of their respect¬
ive States, the title to real estate of the value of many millions of dollars may here¬
after be drawn in question. On the other hand, certainty of citizenship is of equal
importance to the Government. If these forty thousand persons did not legally be¬
come citizens none of them can beheld subject to military or jury duty by the Fed¬
eral or any State Government.
The decisions of all courts favor proceedings to admit aliens against
technical and snap objections, (7 Cranch.,420; 13 Wend., 534.) This is
in the interest of that immigration which George III tried to hinder,
which has given to our country so much of its courage, prosperity,
and glory.
CERTIFICATES OF 1868 AND THE RECORD.
If these certificates were not correct their holders were aliens. Their
right to hold property and vote was thus put in peril, if not entirely
nullified. The pretense was, that there was no record of such natural¬
ization at that time in the supreme and superior courts of New York;
but only a memorandum in an index book. The papers were on file,
depositions were taken, and the law complied with in so far as the
alien could do it. Every duty devolved on the applicant was com¬
plied with. _ The record was made according to the very language of
J udge Daly, in the article onnaturalization in Appleton's Encyclopedia.
The papers pf these cases were a sufficient record.
But this matter not only had a judicial interpretation by Judge
Freedman, but by a Federal judge, Blatchford. Both held that the
applicant for citizenship was not responsible for any non-compliance,
in making up the record; and that though some of these naturaliza¬
tions were irregular, none of them were void. The same practice had
obtained to some extent in United States courts; but no notice was
taken of that by Davenport in his preparations for arrest.
23
Never before 1878 had any legal proceeding been attempted to test
the validity of the naturalizations of 1868. No person was ever ar-
rested or tried for having the certificate of that year. This commis¬
sioner unblushingly testifies that he had stricken from the registry
as many voters having 1868 certificates as to reduce the number from
40,068 to 10,056!
ILLEGAL PROCEEDINGS, 1878.
In 1878, he began proceedings against all who held these certificates,
because they had voted on them illegally in 1876. He had not thought
of testing the validity of these certificates in 1876, and he had sworn,
before the committee of which I was chairman, that the election of
New York was the best ever held in that city! He began his attack
upon these holders of 1868 certificates in May, 1878, through one of
his clerks, who made the affidavit. He began it with an omnibus
complaint covering over five thousand persons, and issued his war¬
rants. But he forgot, in his zeal, that it was illegal to unite in one com¬
plaint so many charges, and they were withdrawn. In June, 1878, his
creature, one Mosher, swore to twenty-eight hundred separate com¬
plaints against persons who were registered in 1876. He disregarded
the authority of the district attorney and the advice of the Attorney-
General. On June 15,1878, he was told that he could not prosecute in
order to destroy the certificates or to prevent voting; nevertheless the
warrants were issued. His object was to frighten the voters into giv¬
ing up their certificates. This he boasted of having accomplished.
Not content with this, he published in the newspapers notices, which
had the effect of a threat against the voters, and by all sorts of de¬
vices and frauds obtained the surrender of three thousand certificates.
Many who held them have made affidavit that they were obtained un¬
der false pretenses, namely, that new ones would be furnished or that
it was merely an examination as to their validity.
He went so far in the case of Albert Pohls as to take from him his
framed certificate because it was obtained in 1868. Pohls had served
four years in the Army, and on his discharge was properly natural¬
ized. He had voted ten years on this certificate. This conduct was
harmless compared to the arrests I have referred to. Some of these
tyrannical acts are without example in the history of government.
Davenport did not put any one to death, but I assert, on the best au¬
thority, that the outrageous incarceration of a large number of weak
and delicate men resulted subsequently in their death.
The democratic party in New York undertook to countervail the
action of this officer. They took the position of Judges Freedman
and Blatchford. Finding it impossible to be reconciled with Daven¬
port, as in 1876, they gave public notice to all persons having doubts
about the validity of their certificates, or who had been imposed upon,
to call and have their cases investigated, and to take steps to be re-
naturalized. I will not rehearse the various instructions and schemes
by which some thousands of certificates were taken from persons
who made application to register. Some of these were men who had
fought in the Army and who had been properly naturalized, and yet
by intimidation, fraud, and force this superserviceable, subordinate
Federal officer seized the certificates in spite of the decisions of the
courts, and thus deprived our people of their most transcendent right.
For this deprivation, by the common law, he is liable to each of them
in a civil action. It was nothing less than perjury for Mosher, the
creature of Davenport, to have made the affidavits on which to issue
the warrants against these naturalized citizens.
Efforts have been made to procure the names of the fourteen hun-
24
dred men who were hired, last year, by our money, to intimidate and im¬
prison the voters of New York City; but in vaiu. Were they any bet¬
ter than the irresponsible tatterdemalions selected in 1870 ? Where
do they live? Are they jail-birds, thieves, shoulder-hitters ? What
are their antecedents ? We ought to know the instruments created
by this law.
The court laid down the idea, which is expressed in the law itself,
that these holders of certificates must have guilty knowledge that
they were invalid or fraudulent. No crime could he committed in
connection with them except upon the scienter. Yet this tyrannical
conduct was based upon the loose proposition that all the naturaliza¬
tions of 1868 were fraudulently made and had no record; and this,
too, although the court decided that there was a sufficient record,
and although the United States district attorney himself, testified
that many cases of arrest were men who were imposed upon and had
no guilty knowledge. Still the raid went on, until j ust before the elec¬
tion, when, without notice to the district attorney or any one in his
office, thirty-two hundred complaints were made by Mosher on the
3d and 4th of November. On the Sunday and Monday preceding
election, these thirty-two hundred warrants for the arrest of those
having a certificate of 1868, were issued.
These certificates were not, as I say, illegal, because of the record.
This Judge Blatchford pointedly decided in the Coleman case. Not¬
withstanding that it had been the custom for fifteen years, in the high¬
est courts of New York, presided over by eminent and honest judges
of both parties; notwithstanding there was no guilty knowledge on
the part of the naturalized citizens; notwithstanding many men had
been soldiers, who had been naturalized in all proper ways,—many
thousands of these men were intimidated by the general seizure, and
never appeared to vote. Many, when they appeared, were at once
dragged to the post-office building, and imprisoned as I have stated.
Many were brought before the United States commissioner or there-
publican headquarters aud released on a promise not to vote; and
thus this forced, cruel, and vindictive execution of a Federal law
went on. Of the three thousand two hundred persons of this registry
for whom warrants were issued, only one thousand two hundred and
forty voted; and it is claimed that only six hundred and sixty were
arrested. But it is also claimed, with more semblance of truth, that
thousands were prevented from voting by these unexampled proceed¬
ings.
It is not necessary to describe the mode by which men were pre¬
vented from voting by their arrest. Even when ample bail was offered
the commissioner took twenty-four hours to consider. His object
was to prevent voting.
The iron cage, Mr. Speaker, is no myth, though republicans make
light of it. It was the place for the detention of criminals who are
tried in the United States courts. It generally contained, during that
time, some thirty persons, including filthy, drunken, and boisterous
prisoners. It was crowded beyond its utmost capacity on election
day; and among the arrested were not only mechanics and mer¬
chants,—men of the highest respectability, but men who had fought
for the country throughout the whole war.
It may he that this law might be so executed as to give some satis¬
faction, as was the case in 1876; but it was done then simply because
of the fear of bloodshed between the militia and Federal troops, aud
a general agreement such as I have heretofore described. But on the
same principle the rack, the red-hot plow-share, and other kinds of
25
ordeal and torture can be justified. It is only a difference in degree
and practice, not in principle. On the same principle the fact that a
jury which gives a verdict under fear, can be justified. On the same
principle, a despotism tempered by moderation at times may be more
dangerous than a despotism which has no element of goodness in it.
The one rudely dethrones the people and the other insidiously relaxes
and enervates their votes and their energies.
To hear gentlemen talk one would suppose that they held it to be
the primary duty of Government to protect the people by such schemes
of cunning and force, against themselves, and that, too, when exercis¬
ing the highest privilege.
constitutional and legal difficulties—arrest on sight.
There is more danger in this system, which may be summed up in
section 5222 of our Revised Statutes, than in all the uses of the sword.
Observe this section, for it may be the turning point of the veto of
this legislative appropriation bill:
Sec. 552*2. Every person, whether with or without any authority, power, orprocess,
or pretended authority, power, or process, of any State, Territory, or municipality,
who obstructs, hinders, assaults, or by bribery, solicitation, or otherwise, interferes
with or prevents the supervisors of election, or either of them, or the marshal or
his general or special deputies, or either of them, in the performance of any duty
required of them, or either of them, or which he or they, or either of them, may be
authorized to perform by any law of the TJnited States," in the execution of process
or otherwise, or who by any of the means before mentioned hinders or prevents
the free attendance and presence at such places of registration or at such polls of
election, or full and free access and egress to and from any such place of registra¬
tion or poll of election, or in going to and from any such place of registration or
poll of election, or to and from any room where any such registration or election or
canvass of votes, or of making any returns or certificates thereof, may be had, or
who molests, interferes with, removes, or rejects from any such place of registra¬
tion or poll of election, or of canvassing votes cast thereat, or of making returns or
certificates thereof, any supervisor of election, the marshal, or his general or
special' deputies, or either of them; or who threatens, or attempts, or offers so to
do, or refuses or neglects to aid and assist any supervisor of election, or the marshal
or his general or special deputies, or either of them, in the performance of his or
their duties, when required by him or them, or either of them, to give such aid and
assistance, shall be liable to instant arrest without process, and shall be punished
by imprisonment not more than two years, or by a fine of not more than $3,000, or
by both such fine and imprisonment, and shall pay the costs of the prosecution.
Observe the enormity of this section! All who obstruct, binder,
assault, bribe, solicit, interfere or prevent the execution of the law,
in tbe various ways enumerated, or who threaten, attempt, or offer
so to do, or refuse or neglect to aid and assist in the execution of this
odious law, are liable to instant arrest without process, and punish¬
ment without trial! Not alone is this a violation of our fundamental
law, but of every local and State law to protect the freedom of elec¬
tions and to keep the peace. Where is the limit to the ferment, tur¬
bulence, violence, bloodshed which such instant arrest, on sight, with¬
out warrant, brings upon the community ? No worse tyranny was
ever enacted for the perpetuation of power and the wreck of suffrage.
dividing line between states and federal government.
The Constitution is violated in this way in every degree. The
States themselves, pro hac vice, are destroyed. Let us make no con¬
cession to wrong, even the least. One wrong draws to itself another.
The least wrong establishes the precedent.
Is this interference by Federal legislation in elections, justified by
the first section of the fifth article of the Constitution, whose terms
are " The times, manner, and places of holding elections for Senators
and Representatives shall be prescribed in each State by the Legisla¬
ture thereof but Congress may by law make or alter such regulations,
26
except as to the place of choosing Senators ?" I ■will not add to the
elaborate discussion growing out of this clause, but shall simply state
some considerations pertinent to and illustrative of it, by the conduct
of the Federal officials in the city of New York:
First. This clause was intended to empower and command the
State Legislatures to provide by law for choosing Federal Eepresent-
atives; the system of the Government being founded upon the idea
that the Senators would represent the States as organized political
bodies, and the Eepresentatives the people of the States as individ¬
uals. The two Houses thus became representative of the State.
Second. The States were required to enact that authority as to the
time, place, and manner of holding elections. The time and place
were requisite in order to render uniform the action of the States.
The word " manner " was used to comprehend the method of voting as
by ballot or otherwise, and so that the local returns could be verified,
and hence,
Third. The propriety of placing this power to effect this repre¬
sentation in the State to be represented. The admitted power of
the States to prescribe the qualifications of voters carries with it the
right to prescribe the election machinery and the officers to hold elec¬
tions, free from Federal interference, civil or military.
Fourth. Congress could only exercise this authority when the States
failed and the necessity arose.
Fifth. Only where the States were guilty of neglect or where there
was unfair legislation might Congress make " regulations," and then
the congressional power was always subordinate to that of a State.
Sixth. There is no State in the Union that has not made the pro¬
visions required by the Constitution. Every State has its own elec¬
tion laws, so as to perpetuate representation in Congress. Therefore,
the whole subject is exhausted, and Congress has no right to interfere.
Seventh. Congress cannot intervene to create offenses, to be pun¬
ished by the Federal courts by additional penalties, when the States
have already attended to that matter; nor can Congress make laws
to keep the peace of the State, or protect voters, without the consti¬
tutional request of State authorities.
Eighth. If Congress has any control over the manner of holding
the elections, its power should be exerted to keep all troops and civil
officers, who. arrest without warrant, away from the polls, under that
constitutional authority. This power, in connection with congres¬
sional control over the Army itself, may be exercised as to Federal
soldiers and other creatures of the Federal Government. Chief-Just¬
ice Marshall, in 1800, when a member of Congress, proposed to do this
very thing as to troops, in a bill which then passed this House.
Lastly. This supervisor law virtually repeals the fourth and fifth
articles of the amendments of the Constitution. These provide that no
process to arrest shall be issued without probable cause, supported by
oath, nor shall any person be deprived of liberty without process.
Yet passion, prejudice, or caprice are allowed by this law ample verge
for their gratification. Arrest may be made on suspicion only. When
arrested, the officer may whisk the suspected person far from fireside,
family, and neighborhood, and thus attain a double object; first,
by getting big fees, and, second, by depriving the arrested man of
his vote. This enforcement law, moreover, gives to these judicial
constables a power the more alarming because masked under the
forms of law. There is no remedy from the State authorities, and no
compensation for the outrage to the aggrieved. But at the same time
the Federal officer, even if a murderer or a burglar, by the same law,
is protected from arrest, although indicted by State authorities.
27
THE LAW NOT EXPEDIENT.
_ If the power to enact such a law exists under the Constitution, it
is not expedient that it should be enacted; first, because the officers
under it are not responsible to or elected by the people; second, be¬
cause it is a burden of expense unnecessary and wasteful; third, be¬
cause it foments dangerous collisions between Federal and State au¬
thorities ; fourth, because it is an invasion of domestic and local inter¬
ests and authority; fifth, because it is the use of simple force, which
is unintelligent, to stifle the informed will of the citizen; and, lastly,
because for the first eighty years of our Government it was never
exercised or believed to be right and constitutional.
AUTHORITIES.
These are not mere assumptions; they are founded on the best
authority. Judge Story, in his Commentaries, acquiesces in the doc¬
trine of Madison and Hamilton in Nos. 52 and 59 of the Federalist,
when he says: " What would be said of a clause introduced into the
National Constitution to regulate State elections of members of the
State Legislature ? It would be deemed a most unwarrantable assump¬
tion of power, indicating a premeditated design to destroy the State
government. It would be deemed so flagrant a violation of principle
as to require no comment."
The wildest and widest construction of the Constitution, even by
such a stickler for Federal power as Hamilton, is that no man would
hesitate to condemn an article of the Constitution empowering the
United States to regulate the elections for Representatives in States.
He called such a supposed article an unwarrantable transposition of
power and a premeditated engine for the destruction of the State
government. Madison believed that it was not possible for the con¬
vention to have made a standard of electoral qualifications, uniform or
different from that already established or which might be established
by the State itself.
OUR DUTY.
What was our duty when such attempts to stab State rights, and
to repeal by Congress the Constitution itself, were made ? Plainly
to resist such legislation here, by all methods known to our rules.
This the small minority of 1870 and 1871, led by Mr. Speaker Kerr,
did. What was the duty of the States when such laws were forced
on their unwilling people? Rebellion against Federal authority?
No. Judicial interpretation? That was tried; but in the South,
where the stir of a leaf was monstered into a Ku Klux Klan, even
such civil modes of relief were of no avail. But in the Empire
State, with her democratic governor and her well-trained National
Guard, notice was served that this usurping Federal statute, if exe¬
cuted at all, must not be used as an instrument of intimidation and
oppression. Thus was the Federal power bridled, but it has not yet
been destroyed. This is reserved as one of the trophies of the de¬
mocracy!
I have stated the propositions and authorities which justify a thor¬
ough overhauling of the Federal system which would interfere in the
elections of a State, either by laws like those of the supervising stat¬
utes or by the use of the Army.
FRENCH PREFECTS AND FEDERAL SUPERVISORS.
The very practice which is contended for by gentlemen is that which
demoralized the third Napoleon. It was the practice of the French
government to send out its favorite candidates to the prefectures,
28
and under government auspices, and from the central power at Paris
direct and control the elections of the people in different localities.
Since then, the Republic of France has been organized, and during
the administration of McMahon, the French Chamber has boldly un¬
seated many deputies, because the government sought to override the
popular will by its central agencies. That abuse of central power led
to the downfall of the McMahon ministry. Let gentlemen on the
other side be warned by the example!
ABUSE OF JUDICIAL FUNCTIONS WOItSE THAN FOltCE.
But, Mr. Speaker, the supervisor system is more odious because
more insidious than the military, to affect elections. It is especially
so in this country, where the standing army is small compared writk
the mass of voters. Among a people like our own, so scattered and
so deferential to law, and with such simplicity of manners, the judi¬
cial power, in any of its phases, seems of greater importance than the
military or the legislative. Servitude or freedom depends more on
the administration of justice, in a country like ours, than upon the
bad use of force or the mischievous acts of the Legislature. It was
not so much by the aid of mercenary soldiers in Great Britain as by
the aid of lawyers and judges, that tyranny was temporarily in¬
trenched there.
THOROUGH REl'EAL DEMANDED.
Mr. Speaker, I was not able to have any share in the debate which
has occurred during this extra session upon this subject. Hence, an
apology is needed for so long and late an exposition. Besides, I had
already opposed many of these obnoxious measures when they were
proposed here and the theme was somewhat threadbare. But, sir, in
reaching my conclusion, let me ask: where is the justification of these
laws against a free ballot, including the jurors' test oath ? How is
it that they are intended to guard against fraud on the franchise ?
Admitting that there were and are frauds on the franchise, admitting
that both parties have been now and then inculpated in them, yet
how inconsiderable are the wrongs connected with such frauds in com¬
parison with the mutilation of the franchise itself, by usurping civil
officers and the hand of force or the destruction of the jury system
by an odious test oath ?
For myself, and speaking for my constituents, who have been out¬
raged, I would leave no vestige of that legislation, not one scintilla,
not even the supervising observers, with their ex parte examinations
and power to arrest. Let us cut them all up—the whole of the sys-*
tern, by the roots—every fiber of it! Until it is thus eradicated, let
us obey the traditions and laws of legislative freedom, and withhold
supplies till our land is free from these tyrannies. We temporize only
when we leave a remnant of this monstrous system. We detract from
the rights of the States over this subject when we allow even hired
Federal witnesses, selected by Federal courts or supervisors, to stand
around with their badges of Federal authority at polling places. If
peace is to be kept at the polls, as gentlemen seem to desire, let peace
be kept. But by whom ? Let the States keep the peace. It is theirs
to do it. Federal legislation, in whole or in part, as to elections is ut¬
terly subversive of local autonomy. It should be utterly destroyed,
and forever!
THE CIVIL ABOVE THE MILITARY.
Mr. Speaker, let me say that I do not attack the motives of any
one who defends such a system of usurpation, violence, and wrong.
■29
But may I not copy tlie sentiment, if not the words, of a great orator
in a crisis like this, when I say, that it would be puerile, nay, it would
he hypocritical, for us to go on misgoverning and to pretend to hope
that the results of good government will follow and to assume that
those whom we treat as aliens, like our naturalized or southern
friends, ought to feel toward us as brothers. Gentlemen opposite seem
to oppose agitation and yet multiply the grievances by which agita¬
tion is alone supported and by which it was originated. They raise
the cry of fraud, coercion, and revolution when we only call for a re¬
peal of these odious war measures, test oaths, and supervisor stat¬
utes, and at the very time when they are taking steps for an election
by unrepublican modes and coercive methods, in 1380, to annul all
our dearest rights and privileges,- without which our Union and Con¬
stitution are but an empty name.
Let us heed the farewell words of the Father of our Country, who
warned us against the supremacy of the military above the civil
power, and whose highest eulogy by the great Irish orator, Curran, was
that when Liberty unsheathed her sword, which necessity had stained,
Victory returned it to the scabbard; so that Washington became
more than soldier—the splendid exemplification of all the civic vir¬
tues!
O