[Cannon's Precedents, Volume 6]
[Chapter 167 - General Election Cases, 1911 To 1913]
[From the U.S. Government Publishing Office, www.gpo.gov]
GENERAL ELECTION CASES, 1911 TO 1913.
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1. The Senate case of Henry A. du Pont. Section 129.
2. Cases in the second session of the Sixty-second Congress.
Sections 130-134.
3. Cases in the third session of the Sixty-second Congress.
Sections 135-137.
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129. The Senate election case of Henry A. du Pont, of Delaware, in
the Sixty-second Congress.
Instance wherein a resolution providing for investigation of election
of Senator was referred to committee which made no report thereon.
On January 26, 1911\1\ in the Senate, Mr. Harry A. Richardson, of
Delaware, presented the credentials of Henry A. du Pont, elected a
Senator by the Legislature of the State of Delaware for the term
commencing March 4, 1911. The credentials were read and filed without
question, and on April 4\2\ Mr. du Pont took the oath of office.
On February 26, 1912,\3\ Mr. James A. Reed, of Missouri, submitted
the following resolution, which by unanimous consent was laid on the
table subject to call.
Whereas the President of the United States, on the 22d day of
January, 1912, appointed Cornelius P. Swain United States marshal for
the State of Delaware, and sent said appointment to the Senate of the
United States for confirmation, and said appointment was in due course
referred to the Committee on the Judiciary of the Senate for proper
action in the premises; and
Whereas certain prominent citizens of the State of Delaware caused it
to be made known to said committee that they desired to protest against
the confirmation of the appointment of the said Swain, upon the ground
that he was an unfit person to hold the office of United States marshal
for the said State of Delaware; and
Whereas the Committee on the Judiciary of the Senate of the United
States designated two of its members, viz, Senators Sutherland and
Overman, to act as a subcommittee, authorized to investigate the
grounds and reasons for said protest; and
Whereas on the 2d and 9th days of February, 1912, there appeared
before said subcommittee Hon. Willard Saulsbury, of Wilmington, Del.,
representing certain objectors to the confirmation of the appointment
of the said Cornelius P. Swain, and there also appeared the said
Cornelius P. Swain in person and by his counsel, Daniel O. Hastings,
Esq.; and
Whereas said objectors, before said subcommittee, in substance and
effect charged:
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\1\Third session Sixty-first Congress, Record, p. 1463.
\2\ First session Sixty-second Congress, Record, p. 2.
\3\ Second session Sixty-second Congress, Record, p. 2443.
Sec. 129
1. That the said Cornelius P. Swain was unfit to occupy any place
connected with or near the courts of the United States for the district
of Delaware, because the said Cornelius P. Swain bore the common and
general reputation of a persistent violator of the criminal provisions
of the constitution of the State of Delaware intended to secure purity
of elections;
2. That the said Cornelius P. Swain had notoriously been a vote buyer
in the second representative district of Sussex County (New Fork
Hundred) for many years:
3. That the said Cornelius P. Swain had procured and carried large
sum of money into said precinct for the purpose of corrupting the
voters of said district, and in the year 1908 was the assistant cashier
of the corruption fund, and in substance charged that all of the above
facts were notorious; and
Whereas the testimony of certain witnesses produced before said
subcommittee and certain affidavits there read in evidence tended to
prove:
(a) That at the election held in the State of Delaware in the year
1904 members of the legislature were being selected who would
thereafter have the right to elect a United States Senator, and who
did, in fact, elect the said Henry Algernon du Pont Senator from the
State of Delaware;
(b) That shortly prior to said election a large sum of money, to wit,
a sum in excess of $25,000, and claimed to be in excess of $58,000, was
contributed by the said Henry Algernon du Pont.
(c) That said sum of money was distributed among various corrupt
agents working in the interest of the said Henry Algernon du Pont.
(d) That said distribution took place in the office of the said Henry
Algernon du Pont, and with his knowledge;
(e) That $3,000 of the money so contributed was in the office of the
said Henry Algernon du Pont delivered to be used for the purpose of
corrupting the voters of the second representative district of Sussex
County, Del., and was in fact so used under the direction of the said
Cornelius P. Swain, and it was admitted by the attorney representing
said Swain that said $3,000 was so received by him; and
Whereas the evidence tended further to show that not only at the
election held in the year 1904, but in the elections held in the years
1906, 1908, and 1910 similar corrupt practices were employed, and said
evidence tended further to show that said corrupt practices did affect
the election of the members of the legislature who in the year 1911
reelected the said Henry Algernon du Pont to a seat in this body; and
Whereas said subcommittee construed its duties to be confined to an
investigation of the corrupt practices with which the said Cornelius P.
Swain could be shown to be directly connected, and did not therefore
investigate generally into the conditions surrounding said election, so
that there has, in fact, been no investigation of the connection of the
said Henry Algernon du Pont with said alleged corrupt practices, except
in so far as the same was made to appear as an incident to the
investigation of the said Swain; and
Whereas the said Cornelius P. Swain was appointed to said office at
the request of the said Henry Algernon du Pont, notwithstanding the
evidence tends to show his corrupt practices and general reputation as
an election corruptionist: Now, therefore, be it
Resolved, That the Committee on Privileges and Elections, or any
subcommittee thereof, be authorized and directed to investigate and to
report to the Senate, whether, in fact, corrupt methods and practices
were employed by the said Henry Algernon du Pont to secure the election
of members of the legislature, who thereafter elected him to a seat in
this body; whether said corrupt practices related to the general
election of 1904, or the general election of 1910, or to his election
by the members of the legislature selected at said elections; and
whether the said Henry Algernon du Pont is a proper person to retain
his seat, or ought to retain his seat, in this body as a Senator from
the State of Delaware.
Said Committee on Privileges and Elections, or any subcommittee
thereof, is hereby authorized to sit during the sessions or the recess
of the Senate; to hold its sessions at such place or places as it shall
deem most convenient for the purposes of the investigation aforesaid;
to employ stenographers; to send for persons and papers; and to
administer oaths. The expenses of the inquiry shall be paid from the
contingent fund of the Senate upon vouchers to be approved by the
chairman of the committee or chairman of the subcommittee.
Sec. 129
Said committee is requested to proceed with said investigation with
all reasonable speed and to report its findings, together with the
evidence, at the earliest possible date.
On the following day,\1\ in the Senate, Mr. du Pont rose to a
question of privilege and said:
Mr. President, I rise to a question of personal privilege. Certain
resolutions were offered yesterday in the Senate by the junior Senator
from Missouri formulating charges against me. I will at this time
confine myself to making the most emphatic denial of the truth of the
charges made and invite any action which the Senate may deem proper to
take in the premises.
Subsequently,\2\ Mr. Reed called up the resolution and in debate
said:
On the 22d day of January, 1912, the President of the United States
appointed Cornelius P. Swain United States marshal for the district of
Delaware and sent said appointment to the Senate for confirmation.
I am not at liberty to disclose the proceedings of the executive
sessions, but if the newspapers are to be trusted the committee
exercised remarkable diligence and unusual alacrity in reporting the
appointment favorably upon the very day it entered the Senate. But
objections were made by some Senator, and the vote reconsidered and the
appointment recommitted on January 23. The nomination was afterwards
withdrawn by the President on February 13.
Prior to the withdrawal, and on February 2, there appeared before the
subcommittee of the Judiciary Committee Hon. Willard Saulsbury,
representing certain objectors to the appointment. Cornelius P. Swain
also appeared in person and by his attorney, Daniel O. Hastings.
Thereupon Mr. Saulsbury stated, among other things, as follows:
Cornelius P. Swain has notoriously been a vote buyer in the second
representative district of Sussex County for many years. * * *
Specification 2: That on November 4, 1904, a Republican mass meeting
was held at Dover, Del. After this meeting, appointment was made with
Col. du Pont's manager to meet a number of the old Addicks leaders at
his, the manager's, office in Wilmington the next day, on Saturday,
November 5, 1904. This appointment was made by a telephone call of one
of the candidates on the State ticket, who had learned from the
Addicks, or Union, Republicans that they were without money for the
election. Addicks notified United States Senator Allee that he could
not ``make good'' for election money. (This was on Thursday or Friday,
November 3 or 4.) It was said that Col. du Pont's manager had blocked
Addicks on getting his money in New York, and the Republicans were
without money.
On Saturday, November 5, Senator Allee, Dr. R. C. Layton, Robert O.
Houston, et al., went to Wilmington to Col. du Pont's manager's office,
where they saw the colonel and his manager, and discussed how the money
should be spent.
Enough paper money could not be had from the Wilmington banks to
supply the demand, so there was a great amount of gold--in the
neighborhood of fifty or sixty thousand dollars--divided there. It was
understood that $10,000 more would be forthcoming on Monday.
C.P. Swain, now nominated for United States marshal, took his
allotment for the second representative district of Sussex County
(Northwest Fork Hundred) in gold coin $20 gold pieces, done up in bags,
put it in a satchel and left for home. * * *
When the additional $10,000 was to be given out on Monday the manager
telephoned Senator Allee to come with the man who was to get it, as he,
the manager, would not otherwise trust that man.
Swain took the $3,000 in gold to Bridgeville, Del., where he and his
friends discussed what they should do with it for safe-keeping over
Sunday.
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\1\Record, p. 2492.
\2\ Record, p. 2550.
Sec. 130
Mr. Reed quoted charges that this money was delivered to political
workers for the purchase of votes and was actually used for that
purpose on election day. He further quoted Mr. Saulsbury as saying:
Addicks got some money loosened up on Monday and furnished it to his
lieutenants, who already had the du Pont money, and in that way ``out
under'' the Colonel (Mr. du Pont) and his manager; that is, Addicks's
old crowd, and so produced the senatorial deadlock in 1905.
That the legislature thus elected met January 3, 1905, and adjourned
March 23, 1905, without election of Senator; that a special session was
called for May 31, 1905, the first vote taken on June 12, and Col. du
Pont (now Senator du Pont) was elected June 13, 1906.
From all the evidence adduced Mr. Reed concluded:
The undisputed evidence shows Swain's corrupt practices, in at least
one important transaction, to have been pursuant to a plan devised in
the office of the Senator from Delaware. Assuming the facts to be true,
as shown by the undisputed evidence, it must therefore be taken as
proven that the Senator from Delaware recommended Cornelius P. Swain
for the important position of United States marshal with full knowledge
of his corrupt practices.
I challenge your attention to this fact, that if this testimony is
true, then we are forced to the inevitable conclusion that the Senator
from Delaware knew that his man Swain's hands were covered with the
slime of corruption; that for 25 years he had been a defiler of the
electorate of his State; that for a quarter of a century he had been a
sapper and miner, digging beneath the citadels of Delaware, beneath the
foundation of our civilization; and yet, nevertheless, he causes his
name to be sent to this body that we may put the insignia of our
approval upon the name of a man of that kind. To recommend that such a
man as this should be put close to the courts of Delaware, put into the
very halls of justice, given the authority to stand within the shadow
of the figure of equity, to recommend that this vote buyer, this
corruptionist, to be put in charge of juries and of witnesses is an
offense against the Senate. If these witnesses have testified falsely,
then let it be shown before a committee of the Senate. But if this
evidence is true, you can not ignore it and preserve the chastity and
the integrity of the United States Senate.
At the conclusion of Mr. Reed's remarks the resolution was referred
to the Committee on Privileges and Elections which made no report
thereon.
130. The South Carolina election case of Prioleau v. Legare in the
Sixty-second Congress.
In the absence of proof to the contrary an election is assumed to
have been properly held and the votes honestly counted.
The courts and not Congress constitute the proper forum in which to
test the constitutionality of a State constitution.
A person on having unsuccessfuly instituted five consecutive election
contests the House expressed the hope that the fifth would be the last.
On August 6,1912,\1\ Mr. J. Charles Linthicum, of Maryland, from the
Committee on Elections No. 2, submitted a report in the South Carolina
case of Aaron P. Prioleau v. George S. Legare.
The official return gave the sitting Member 3,525 votes and the
contestant 57 votes.
The notice of contest alleged in a general way that qualified
citizens were denied registration and refused the right to vote because
of African descent. It also averred that the constitution of South
Carolina violated the fourteenth and fifteenth
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\1\Second session Sixty-second Congress, House Report No. 1148;
Record, p. 10307.
Sec. 130
amendments to the Constitution of the United States, and the act of May
30, 1870, section 2004, and the act of 1868.
The committee say:
The contestee in answering denies all these averments and further
asserts that the oontestee, further answering said notice of contest,
alleges that the contestant, Aaron P. Prioleau, has persistently for a
number of years past contested the election of contestee upon the same
grounds as set forth in the present contest, and has upon each contest
failed to establish the charges as set forth.
The reports of the House of Representatives show this to be the
fifth, and we hope the last, consecutive contest of the contestant, all
upon practically the same testimony and averments as herein.
The record in the case fails to disclose proof as to the registered
vote of the district, and no information could be had on that subject
at the hearing before the committee. It appears, however, that the
election was held on the day set forth and that upon the face of the
returns the contestee had a majority of over 3,400, and the committee
must presume that the election was legal and properly held and the
votes honestly counted unless the contrary can be shown.
Following this rule:
The committee is unanimous in concluding that the contestant has not
shown by the evidence and exhibits produced before it that he was
elected, and therefore declare that he is not entitled to a seat in the
House of Representatives of the Sixty-second Congress.
As to the question of constitutionality raised by the contestant the
committee further say:
The contestant further claims, however, that there was no election
held, because the constitution of South Carolina is contrary to the
Constitution of the United States in that it violates the fourteenth
and fifteenth amendments, and likewise to the act of May 30, 1870,
section 2004, and the act of 1868.
This contestant has been informed by four previous committees of the
House that the forum in which to test the constitutionality of a State
constitution is in the courts of the Nation, which are continuous
bodies and recognize their own decisions and judgments, and not before
a committee of Congress the political complexion of which is subject to
change, and whose decisions are not binding upon the succeeding
Congresses, not alone for political reasons but because of honest
differences of opinions as to the interpretation of the provisions of
the Constitution itself.
This contestant has, in disregard to the four adverse decisions by
the House oi Representatives when in the control of his own party,
brought this fifth contest upon the same grounds and upon substantially
the same testimony as heretofore, when he knows there can be but the
same result. The reason for his contest must therefore be apparent to
all who care to examine the records.
The constitution of South Carolina has been in force for 17 years,
thus affording abundance of time for the contestant and his biennial
witnesses to test the same in the highest courts of the land, but he
has constantly and persistently refused to do so. For reasons which we
have assigned this committee feels that whenever it occurs in the minds
of any of our citizens that the constitution and election laws of any
State are in conflict with the Federal Constitution and statutes of our
national organic law the courts of the land, so admirably established
and safeguarded and so abundantly provided with the machinery for
enforcing its decrees and mandates, is the proper and only forum for
the determination of questions of this character.
Therefore the committee reported the following resolution, which, on
August 16,\1\ was unanimously agreed to by the House:
Resolved, That Aaron P. Prioleau was not elected a Member of the
Sixty-second Congress from the first congressional district of South
Carolina and is not entitled to a seat therein.
Resolved, That George S. Legare was elected a Member of the Sixty-
second Congress from the first congressional district of South Carolina
and is entitled to a seat therein.
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\1\Journal, p. 971; Record, p. 11119; Moores' Digest, p. 54.
Sec. 131
131. The Missouri election case of Maurer v. Bartholdt in the Sixty-
second Congress.
The contestant failing to submit evidence substantiating charges made
in his notice of contest, the House confirmed the title of the sitting
Member.
On August 9, 1912,\1\ Mr. Charles A. Korbly, of Indiana, from the
Committee on Elections No. 2, submitted the report in the Missouri case
of Charles J. Maurer v. Richard Bartholdt.
The report in full is as follows:
The allegations of fraud made by contestant were not sustained by the
evidence adduced; in fact, no evidence whatever was presented to
substantiate the charge.
The allegation that contestee was not a naturalized citizen was not
sustained. On the contrary, contestee furnished incontrovertible proof,
by the presentation of his naturalization papers legally issued on May
23, 1877, that he is and has been a legal citizen of the United States
since that date. Therefore we beg to submit the following resolution
for adoption:
``Resolved, That Hon. Richard Bartholdt is entitled to his seat as a
Representative of the tenth congressional district of Missouri.''
The resolution was unanimously agreed to by the House without debate.
132. The Illinois election case of Crowley v. Wilson in the Sixty-
second Congress.
Notwithstanding that the law requiring careful preservation of
ballots may not have been complied with, and that opportunity to tamper
with the ballots may be shown to have existed, unless evidence is
produced to prove such tampering the point will not be considered.
In the absence of conclusive proof to the contrary it is presumed
that all votes cast are legal votes and all voters casting them are
legal voters.
On August 15, 1912,\2\ Mr. E. F. Holland, of Virginia, from the
Committee on Elections No. 1, submitted the report in the Illinois case
of Fred J. Crowley v. William W. Wilson.
The sitting Member in this case had received according to the
official returns a plurality of 57 votes. After notice of contest had
been served a recount was agreed upon and made before a notary public
before whom testimony was taken, which further increased the plurality
of the contestee to 124 votes.
The first objection advanced by the contestant was that the ballots
from the election districts outside of the city of Chicago were
negligently and insecurely kept, and were thus constantly exposed to
tampering. This seems to have been conceded, but as no evidence was
adduced to show that they were in fact tampered with in any way the
committee reported:
The Illinois statutes provide merely that ballot boxes, with ballots
and returns, shall, after election, be carefully preserved. The ballot
boxes were in this case in the custody of the proper authorities, and
while the manner of their keeping may have afforded some slight
opportunity for
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\1\Second session Sixty-second Congress, House Report No. 1168;
Journal, p. 946; Record, p. 10623; Moores' Digest, p. 54.
\2\Second session Sixty-second Congress, House Report No. 1195;
Journal, p. 963; Record, p. 11025; Moores' Digest, p. 57.
Sec. 132
tampering with them, there is not the slightest evidence in this case
that a single ballot box, ballot, or return was, in fact, tampered
with.
As to certain ballots inspected by order of court:
In regard to the 21 ballot boxes opened by order of the judges of the
county court of Cook County, it is sufficient to say that the ballot
used in elections in the State of Illinois contains the names of
candidates for State, county, and municipal offices as well as the
names of congressional candidates. These ballot boxes were opened by
order of the court in a competent proceeding under the State laws to
ascertain the vote upon a certain question submitted to the voters of a
district, and to ascertain the vote for a candidate for the office of
probate judge, and they were opened in the presence of the court, and
the evidence is conclusive that they were not tampered with in any way.
The contestant also alleged that 100 men voted illegally in the town
of Worth, one of the country districts of the congressional district.
The law of the State of Illinois provided:
No vote shall be received at any election in this State if the name
of the person offering to vote be not on said register * * * unless the
person offering to vote shall furnish to the judges of the election his
affidavit in writing stating therein that he is an inhabitant of said
district and entitled to vote therein at such election, and prove by
oath of a householder and registered voter of the district in which he
offers to vote that he knows such person to be an inhabitant of the
district, * * * giving the residence of such person within the said
district. (Ptd. Rec., 166.)
The law also provided that such oaths should be preserved, and the
contestant contended that while the poll books of the Worth district
showed that 100 men voted who were not registered, their oaths, if ever
taken, had not been preserved as required by law.
The committee say:
The only witness produced by the contestant upon the matter of these
nonregistered voters was the election clerk in the office of the county
clerk of Cook County, one of the places where the affidavits of
nonregistered voters may be filed under the law. He testified that the
poll book used at the election in the district in question contained
the names of 100 persons with a mark ``IN. R.'' after their names,
which he supposed meant ``not registered.'' He further testified that
the envelope in which affidavits of nonregistered voters should be
returned was with the poll book, unused and empty. He further testified
that he made a search for the affidsvits in the election vault of the
county clerk's office and did not find them. He, however, admitted that
the affidavits of nonregistered voters are not always in the envelopes
prepared for them when returned, and he said in answer to the question,
``Is it not possible, Mr. Zurburg, that these affidavits may be
somewhere in the office with some of the returns of that election?''
``They may and may not; I can not tell.''
No election official of the district was produced as a witness to
prove that votes were received from nonregistered persons without
affidavits as required by law; the registry lists were not produced to
show by comparison with the poll books that all the names marked ``N.
R.'' were nonregistered persons; and there was no evidence to show that
the affidavits of all nonregistered voters in the district might not be
in some lawful place of custody other than the office of the county
clerk.
The presumption is that all votes cast are legal votes and that all
persons costing them are legal voters. In the absence of conclusive
proof that the 100 votes of alleged nonregistered voters in the
district were fraudulent we can not reject them and throw out the
district. The contestant has utterly failed in this proof.
Sec. 133
Accordingly the committee reported a resolution confirming the title
of the sitting Member to the seat which was unanimously agreed to by
the House without debate or division.
133. The Iowa election case of Murphy v. Haugen in the Sixty-second
Congress.
Where some of the ballots were missing a recount was denied.
No evidence of error in the counting of the votes having been
adduced, the committee denied an application for a recount.
On August 16, 1912,\1\ Mr. Henry M. Goldfogle, of New York, from the
Committee on Elections No. 3, submitted the report in the Iowa case of
Daniel D. Murphy v. Gilbert N. Haugen, as follows:
There appeared no evidence that any error was committed in the
counting of the votes for Representative in Congress in the fourth
congressional district of Iowa. It was, however, claimed and strongly
asserted by the contestant that were the boxes opened and the ballots
cast in said district recounted, it would be found that the contestant,
Murphy, had received a majority of the lawful votes in said district
for Representative in Congress. It appears that the ballots on which
the names of candidates for various offices were printed, including
those of the parties to this contest, had been recounted in one of the
contests for local office. Some of those ballots, after they had been
handled on such recount in Iowa, had not been preserved, so that in
justice to all the parties they could have been examined to ascertain
their validity and be recounted. The proof requisite to establish the
integrity of all the ballots cast in the entire congressional district
was lacking. This was due, it ought in fairness be said, to no fault
whatever on the part of either the contestant or his learned and
distinguished counsel. Under all the circumstances of this particular
case, as they were developed on the hearings, the committee, applying
the authorities as they obtain in the House of Representatives, felt
themselves constrained to deny the application for a recount.
Therefore the committee reported a resolution declaring the returned
Member elected and entitled to the seat.
The resolution was unanimously agreed to by the House without debate.
134. The West Virginia election case of Wiley v. Hughes in the Sixty-
second Congress.
Counsel for contestee having admitted the justice of contestant's
contention that certain returns ought to be excluded on account of
fraud, it was held that the vote from those precincts should not be
counted for either contestant or contestee.
Although the court refused to appoint challengers for both parties as
required by law, and challengers attempting to serve were driven from
the polls, the absence of challengers is not of itself sufficient to
establish fraud.
The original existence of a certificate of naturalization being
established, it was held competent to prove its contents by oral
evidence.
Instance wherein leave was given to take further testimony and
produce additional evidence after briefs had been filed and arguments,
heard.
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\1\Second session Sixty-second Congress, House Report No. 1203;
Journal, p. 973; Record, p. 11128; Moores' Digest, p. 58.
Sec. 134
On August 20, 1912,\1\ Mr. J. Harry Covington, of Maryland, from the
Committee on Elections No. 1, submitted the report in the West Virginia
case of Rankin Wiley v. James A. Hughes.
The sitting Member had been returned by an official majority of 2,942
votes.
The counsel for contestant and contestee in their briefs and by oral
agreement eliminated practically every question in this case with the
exception of the charges of fraud in the nine precincts in Mingo County
and in McDowell County, and the question of the citizenship of the
contestee.
The report says, as to Mingo County:
During the course of the argument Mingo County was eliminated as a
factor in this case by the admission of counsel for the contestee that
fraud was committed in that county in the interest of the contestee,
and that it was so flagrant and outrageous that the returns from the
nine precincts where the frauds were perpetrated ought to be excluded
in counting the vote for the contestant and contestee.
As to McDowell County:
McDowell County is located immediately east of Mingo County. Its
population is largely made up of foreigners and negroes who are
employed in the various coal developments of the county. All of the
county officers are Republicans. The county court, which appoints the
election commissioners, is composed of Republicans, and the testimony
in the case shows conclusively that the method of conducting elections
in the county make it a most fruitful place to perpetrate wholesale
election frauds. The testimony shows that the president of the county
court, one Dr. H. D. Hatfield, who is also president of the Senate of
West Virginia, refused to appoint challengers for the Democratic Party
at the various voting precincts of McDowell County, although the law of
West Virginia seems clear that the county chairman of the two leading
political parties shall nominate and the county court shall appoint
challengers of election. The testimony shows that this Dr. Hatfield was
very active in the actual conduct of the election in McDowell County,
and the refusal to appoint Democratic challengers raises a strong
presumption that the conduct of the election was to be neither fair nor
honest.
The committee decide, however:
However, the absence of challengers from the voting precincts is not
of itself actual proof of fraud. The contestant relies upon the failure
of the county court to appoint challengers of his party, upon the
evidence that where democratic challengers attempted to serve they were
either arrested or driven from the polls, and upon his own testimony
that general political conditions were such in McDowell County that he
had been warned not to go into the county to make speeches for fear of
personal violence, to establish such a general conspiracy to defraud as
warrants the rejection of the entire vote of McDowell County. With that
proposition the committee is unable to agree. The circumstances are all
strong as showing a deliberate intention to commit fraud in the
interest of the contestee. On the other hand, there is no actual proof
of a fraudulent vote in the county, and we can not reject the vote.
The question of citizenship is thus discussed by the report:
We now come to the question of the qualification of the contestee to
hold the office of Representative in Congress.
Article I, section 2, of the Constitution of the United States,
provides:
``No person shall be a Representative who shall not have attained the
age of 25, have been seven years a citizen of the United States, and
who shall not when elected be an inhabitant of that State in which he
shall be chosen.''
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\1\Second session Sixty-second Congress, House Report No. 1229;
Journal, p. 994; Record, p. 11194: Moores' Digest, p, 58.
Sec. 134
The record in this case discloses that James A. Hughes, the
contestee, was born in Canada, in 1861, and was a subject of Queen
Victoria; that he removed to the United States some time in the year
1872 and moved some time later to Boyd County, Ky. He claimed that he
was naturalized in the city court of Boyd County, Ky., in 1882, by one
W. W. Culbertson, who was then mayor of Ashland, Ky. The records of the
city court of Ashland are extant and an examination of them from 1882
to 1890 shows that there is no record of such naturalization existing.
There was no evidence offered by the contestee to show the original
existence of such a record, and that such record has been lost or
destroyed. In consequence there was no legal foundation for the
introduction of secondary evidence to prove the actual existence of
such a lost or destroyed record of naturalization.
The contestee, on the 5th day of November, 1900, on the evening of
general election of that year, at which time the said contestee was a
candidate, filed a petition and affidavit, which appears on pages 443
to 444 of the record, and an order was made by the circuit court of
Cabell County, W. Va., declaring that ``the said James A. Hughes be,
and he is hereby, declared to be a naturalized citizen of the United
States.''
The proceeding in the West Virginia court was, however, wholly void.
If it be considered from the viewpoint of a proceeding to naturalize
the applicant in the first instance, it failed, because there was no
effort to produce the witnesses required by the Revised Statutes of the
United States to authorize naturalization in the first instance. It
obviously failed as an effort to perpetuate an alleged existing
naturalization because the courts of one State have no power, by a nunc
pro tunc order or otherwise, to perfect or cure defects in an original
order or decree of the court of another State, nor can the court of one
State by any supplemental proceeding perpetuate the missing records of
the court of another State.
After briefs had been filed and the case had been argued before the
committee, the contestee asked leave to take further testimony and
produce additional evidence on this point.
On February 10, 1912,\1\ in compliance with this request, the House
agreed to the following resolution:
Whereas the contested-election case of Rankin Wiley v. James A.
Hughes, from the fifth district of West Virginia, was referred to the
Committee on Elections No. 1, and after the testimony and briefs of
counsel were filed with said committee, and after counsel had fully
argued and commented upon the same, counsel for the contestee requested
leave of said committee to take the testimony of sundry witnesses and
to produce additional evidence relative to the said contestee's
citizenship: Now therefore be it
Resolved by the House of Representatives, That the Committee on
Elections No. 1 shall be, and hereby is, authorized and empowered to
permit the taking of such testimony as it shall deem relevant to better
enable the said committee to determine the question of citizenship
involved in the contested case of Wiley v. Hughes, from the fifth
congressional district of West Virginia, and that the expenses incurred
in taking such testimony shall be paid in the same manner as the other
expenses incurred in the taking of testimony in this and similar cases.
After consideration of the additional evidence produced by authority
of this resolution, the committee concluded:
The contestee, if not now a citizen, can not become one for five
years, and the seriousness of the question impelled the committee to
direct the taking of additional testimony on the question of his
citizenship. As a result of that course it was proved by the contestee
by competent and legal evidence that there was at one time in existence
a legal and sufficient certificate of naturalization issuing from the
court in Ashland, Ky., in which he claimed in his answer in this
contest to have
-----------------------------------------------------------------------
\1\Journal, p. 291; Record, p. 1915.
Sec. 135
been naturalized. The original existence of this certificate having
been proved, it was legally competent for the contestee to prove its
contents by oral evidence. The committee feels that this has been
satisfactorily done, and in view of the fact the contestee since his
alleged naturalization has served as a member of the Legislature of the
State of Kentucky, as a member of the State Senate of the State of West
Virginia, and for 12 years a Member of the House of Representatives of
the United States, his citizenship has been sufficiently established in
accordance with the precedents of the House, to prevent a denial to him
of a seat as a Representative from the State of West Virginia in the
present Congress. In consequence we report the adoption of the
following resolution:
``Resolved, That James A. Hughes was elected a Representative in the
Sixty-second Congress from the fifth district of West Virginia, and is
entitled to a seat therein.''
The resolution reported by the committee was agreed to without
division or debate.
135. The Missouri election case of Kinney v. Dyer in the Sixty-second
Congress.
The evidence failing to sustain allegations of fraud and
intimidation, the title of sitting Member to the seat was confirmed.
On January 30, 1913,\1\ Mr. John M. Nelson, of Wisconsin, from the
Committee on Elections No. 2, submitted the report in the Missouri case
of Thomas E. Kinney v. L. C. Dyer.
In this case general charges of fraud and intimidation were made in
the notice of contest, but as no evidence was submitted tending to
prove them the committee reported:
The allegations of fraud and intimidation made by contestant were not
sustained by the evidence adduced.
Therefore we beg to submit the following resolution for adoption:
``Resolved, That Hon. L. C. Dyer is entitled to his seat as a
Representative of the twelfth congressional district of Missouri.''
The resolution was unanimously agreed to by the House without debate.
136. The Pennsylvania case of Bonniwell v. Butler in the Sixty-second
Congress.
Instance wherein a memorial was referred to an election committee and
on recommendation of the committee was laid on the table.
A committee of the House has no jurisdiction to determine any matter
affecting rights to a seat in a succeeding Congress.
The jurisdiction of the House of Representatives over election
matters is limited to the constitutional right to judge election
returns and qualifications of its own Members, and does not extend to
elections in general.
On February 15, 1913,\2\ Mr. J. Harry Covington, of Maryland, from
the Committee on Elections No. 1, submitted the report in the
Pennsylvania case of Eugene C. Bonniwell v. Thomas S. Butler.
-----------------------------------------------------------------------
\1\Third session Sixty-second Congress, House Report No. 1422;
Journal, p. 201; Record, p. 2327; Moores' Digest, p. 60.
\2\Third session Sixty-second Congress, House Report No. 1523;
Record, p. 3215.
Sec. 136
The case originated in the House with the transmission to the Speaker
on December 14, 1912, of the following communication:
Wayne, Pa., December 14,1912.
Hon. Champ Clark, Speaker of the House of Representatives, and
Members of the House of Representatives,
Washington, D.C.
Gentlemen: I hereby file notice of objection to the right of Thomas
S. Butler to represent the seventh congressional district of
Pennsylvania in the Sixty-third Congress and assign the following
reasons:
First. The seventh congressional district of Pennsylvania is composed
of Chester and Delaware Counties. To procure a majority upon the face
of the election returns at the election held November 5, 1912, certain
agents of the Republican organization of this district, in the service
of and on behalf of Thomas S. Butler, the nominee herein, and certain
other nominees, did, by fraud and perjury, falsely preempt upon the
official ballot of the State of Pennsylvania two titles, one being
``Bull Moose'' and the other ``Roosevelt Progressive.'' Each title was
intended and designed to deceive and mislead the voter whose intention
was to vote the ticket upon which Theodore Roosevelt was a candidate,
to wit, the Washington Party of Pennsylvania. To accomplish these ends
these men forged alleged preemptors' names to the certificates of
preemption. They forged hundreds of names in order to place the names
of Thomas S. Butler for Congress and William C. Sproul for State
senator and the Republican candidates for the State legislature upon
these two false and pretended Progressive tickets. They forged these
names alphabetically, without even the feeble pretense of disguising
the handwriting. They forged signers to the affidavits required at the
ends of these nomination papers. They impersonated the affiants before
the justice of the peace. These facts were known to Thomas S. Butler.
Objections, under the ballot laws, were filed to the right of these
fraudulent pretenders to masquerade as supporters of Roosevelt by the
real Washington Party nominees. Copies of the objections were served
upon Thomas S. Butler and the other candidates. Thomas S. Butler and
the other candidates appeared in the Dauphin County court answering
such summons and maintained their right to remain upon the perjured and
forged tickets. The objections were dismissed upon a technicality, and
Mr. Butler continued thereon in the face of the glaring frauds.
Thereafter and prior to the election, seven men, active in the councils
of the organization supporting Thomas S. Butler, were arrested upon the
charges of forgery and perjury and held in bail for court. Despite the
convincing evidence, Thomas S. Butler willingly shut his eyes to the
nauseous scandal. Funds were supplied by the men interested to the
fraudulent committees masquerading as Progressives. The seventh
congressional district was circularized by letter falsely asserting
that the Bull Moose ticket was the only genuine Roosevelt ticket in the
seventh district, and thereby upward of 4,332 voters were deceived and
misled into voting for Thomas S. Butler for Congress.
It is submitted that the perjury and corruption herein averred was
the result of a deliberate conspiracy on behalf of the organization
leaders whose candidate Thomas S. Butler was. He was cognizant of its
details long before election. He approved of the forgery and perjury by
remaining a candidate upon the said ticket after public notice. That
these acts of themselves disqualify him from membership in the House of
Representatives of the United States.
If further reason be deemed essential that this conspiracy went to
the vitals of this election, let the pollution of the grand jury of
Delaware County at this December session of court speak for itself. The
bills of indictment charging the seven men with perjury and forgery
were to be submitted to this December grand jury. The sheriff of
Delaware County is S. Everett Sproul, brother of State Senator William
C. Sproul, the Republican leader of Delaware County, and, with Thomas
S. Butler, most concerned in these nominations. The grand jury, always
the bulwark of the people's liberties, was prostituted by politicians
to save their tools from conviction. Twelve false jurors, not drawn or
entitled to serve, 6 of them members of the Republican county
committee, 2 more relatives of Republican officials, were secretly
added to the 11 bona fide jurors, and this corrupted jury sought to
destroy justice in its very temple by ignoring the indictments against
the forgers and perjurers, and so make a mockery of the law. This
treacherous body, not content with dismissing every indictment laid
against the corruptionists, to terrorize future men temerarious
Sec. 136
enough to assail their vicious acts, imposed over $700 in costs upon J.
Watts Mercur, the fearless citizen who brought these prosecutions,
Washington Party nominee for State senator, against William C. Sproul.
That 12 jurors were illegal Mr. Mercur discovered. Upon the fact being
presented to the court of common pleas of Delaware County, the
dishonest grand jury was summarily dismissed, all indictments recalled,
and a sweeping investigation set upon foot. It was public knowledge
that this contest was to be instituted, based upon these frauds. It can
not be doubted that one of the chief aims of the men most concerned was
to destroy this ground for contest. This pollution of justice merits
the expulsion of this Representative from the Halls of Congress.
Second. That the expense accounts filed in this district are false
and fraudulent; that money, thousands of dollars, unaccounted for by
any candidate or committee, was expended in the seventh district on
behalf of the Republican candidates, Butler and Sproul in particular,
as will be shown upon the hearing of this contest.
Third. That a committee especially organized by personal friends of
Thorn S. Butler, styled the Butler League, composed and caused to be
published false and libelous articles concerning the contestant.
Fourth. The West Chester Village Record is a local newspaper largely
owned and controlled by T. L. Eyre, Republican boss of Chester County
and personal representative of Thomas S. Butler.
The Chester Republican is a local paper largely owned and controlled
by Senator William C. Sproul, Republican boss and personal
representative of Thomas S. Butler in Delaware County. On August 15,
1912, the West Chester Village Record published the following
editorial:
``The Hon. Thomas S. Butler, the Republican nominee for Congress, was
born and reared in the Society of Friends, and is proud of his Quaker
ancestry. His opponent, Eugene C. Bonniwell, is a Roman Catholic.''
On August 28, 1912, the Chester Republican reprinted this editorial.
Coincident with the two said editorials messengers in the employ of
supporters of Thomas S. Butler traversed the district, having in their
possession and circulating a blasphemous and infamous libel, a copy of
which is hereto attached, pretended to be an oath of the Knights of
Columbus, of which body the contestant is a member. So revolting are
the terms of this document and so nauseating its pledges that the
injury it did not merely to the contestant, but also to the Knights of
Columbus and to Catholics in general, can hardly be measured in terms.
I charge that the circulation of this oath and the publication of the
two editorials herein referred to were part of a conspiracy, precisely
as was the forgery and perjury referred to in paragraph 1--a conspiracy
by the same people for the purpose of arousing religious rancor and of
defeating the Democratic nominee. The Constitution of the United States
prohibits any religious test for office. The organization supporting
Thomas S. Butler created such a test, blazed bigotry in the hearts and
minds of the ignorant, and slandered and villified a great body of
honorable men.
I file no complaint because of adverse election returns. The
Democracy of Pennsylvania is inured to adversity. Nor is this complaint
registered because of defeat resultant upon faith or race. In these
things I own a just pride and do not protest if, because of either,
political honors are to be denied me. But when a calumnious, viperish
attack upon either faith or race is launched injecting religious
bigotry into the political affairs of this Nation, then this protest is
made in certain confidence that all patriotic men, mindful of the
religious as well as the political liberty that the forefathers
designed should be our heritage, will rise and strike down the
beneficiary of such treacherous and dastardly movement.
For myself I make no appeal to your honorable body that I may be
seated. That a plurality of the legal votes cast in that district were
cast for me no one pretends to deny, but representations is the least
of my concerns. This I do maintain, that this man, receiving his
election under these circumstances, adding the felonies of forged
papers, perjured acknowledgments, and violated grand jury to the more
wicked crime of religious slander, ought not to be tolerated in the
House of Representatives.
Respectfully submitted.
Eugene C. Bonniwell.
Sec. 136
Mr. Bonniwell was the Democratic candidate for the House of
Representatives in the seventh congressional district of Pennsylvania
at the election held November 5, 1912.
Mr. Butler promptly filed an affidavit in the nature of an answer
denying in detail the charges preferred in the communication.
The Speaker,\1\ on January 17, 1913\2\ referred both communications
as follows.
The Chair has in his possession two communications. One of them
purports to be a notice of contest by Eugene C. Bonniwell against Mr.
Butler, of the seventh Pennsylvania district. On examination of the
document, however, it turns out not to be a notice of contest but to be
something more in the nature of a memorial to this House, setting forth
that the gentleman from Pennsylvania (Mr. Butler] ought to be expelled
from the House. The Chair also has a copy of the reply of the gentleman
from Pennsylvania [Mr. Butler], and without consuming any more time the
Chair refers both papers to the Committee on Elections No. 1.
Notices to appear before the committee were addressed to both
parties. Mr. Butler appeared before the committee as requested and
denied specifically all charges contained in the memorial. Mr.
Bonniwell did not appear before the committee but transmitted to the
chairman a letter asking for a report on the question of the
committee's jurisdiction.
This question the committee discuss as follows:
This committee, of course, has no jurisdiction to determine any
matters affecting the right of any person to a seat in the House of
Representatives in the Sixty-third Congress. It does not, therefore,
attempt to pass upon any question involved in any valid contest which
may have been instituted against the said Thomas S. Butler by the said
Eugene C. Bouniwell of anyone else, alleging that he and not the said
Thomas S. Butler is the duly elected Representative from the seventh
congressional district of Pennsylvania in the Sixty-third Congress.
The communication, however, is thus passed upon by the committee:
However, from a careful examination of the document filed by Mr.
Bonniwell, it appears that the Speaker was entirely correct in
declaring that it is a paper in the nature of a memorial to this House
alleging certain sets and conduct by persons for which Representative
Butler, it is asserted, should be expelled.
The paper, or memorial, is addressed to ``Hon. Champ Clark, Speaker
of the House of Representatives, and Members of the House of
Representatives, Washington, D. C.''
The only Congress in which Mr. Clark is or ever has been Speaker of
the House of Representatives is the present or Sixty-second Congress,
and the only ``Members of the House of Representatives'' in being are
the Members of this House.
It is true that the paper of Mr. Bonniwell begins with the statement:
``I hereby file notice of objection to the right of Thomas S. Butler
to represent the seventh congressional district of Pennsylvania in the
Sixty-third Congress.''
But, in the said paper Mr. Bonniwell distinctly states:
``I file no complaint because of adverse election returns''--
And--
``For myself, I make no appeal to your honorable body that I may be
seated.
The paper of Mr. Bonniwell being filed with this House, and the
author disclaiming that it is filed as a notice of contest in which he
intends to claim the seat of Representative Butler in the Sixty-third
Congress, and it containing such allegations against Representative
Thomas S. Butler, the sitting Member from the seventh congressional
district of Pennsylvania, as follows:
-----------------------------------------------------------------------
\1\Champ Clark, of Missouri, Speaker.
\2\Journal, p. 131; Record, p. 1688.
Sec. 137
``This pollution of justice merits the expulsion of this
Representative from the Halls of Congress''--
And--
``This man receiving his election under these circumstances, adding
the felonies of forged papers, perjured acknowledgments, and violated
grand jury to the more wicked crime of religious slander, ought not to
be tolerated in the house of Representatives''--
the committee has felt it to be its duty to examine with some care the
document to ascertain whether there are any charges made against
Representative Butler which warrant reporting to this House a
resolution recommending his expulsion.
Charges preferred by the communication are thus disposed of:
The paper of Mr. Bonniwell is adroitly drawn, but when analyzed it is
found to be one of innuendo and not of direct charge. It refers to
perjury and forgery in connection with the nominations of
Representative Thomas S. Butler and candidates for local offices in
Chester and Delaware Counties, Pa., and asserts that these crimes of
perjury and forgery were committed through a conspiracy. But there is
no charge that Representative Butler committed or furthered the perjury
or forgery or took part in the alleged criminal conspiracy.
The paper of Mr. Bonniwell further refers to an alleged pollution of
the grand jury of Delaware County, Pa., after the election of 1912, and
at a time when certain election officials were about to be indicted for
alleged offenses at that election, but there is no actual charge that
Representative Butler participated in, furthered, or was even cognizant
of the alleged conspiracy to pollute the grand jury.
The paper of Mr. Bonniwell alleges that a committee especiajly
organized by the friends of Thomas S. Butler, styled the ``Butler
League,'' composed and caused to be published false and libelous
articles concerning Mr. Bonniwell. It will be noted that it is not
charged that said false and libelous articles were either prepared or
published by Representative Butler or that he even had knowledge of
their publication. It merely charges that these publications were made
by the personal friends of Hon. Thomas S. Butler. This allegation, if
true, might make ``the personal friends'' of Representative Butler
guilty of a crime; but it certainly could not make Representative
Butler himself guilty of a crime.
The paper of Mr. Bonniwell further alleges that ``The West Chester
Village Record is a local newspaper largely owned and controlled by T.
L. Eyre, Republican boss of Chester County and personal representative
of Thomas S. Butler,'' and that this newspaper published an editorial
calling attention to the religion of the said Eugene C. Bonniwell, and
that this editorial was republished in the Chester Republican for the
purpose of arousing religious rancor and defeating the Democratic
nominee, Mr. Bonniwell.
137. The case of Bonniwell v. Butler, continued.
It is the uniform practice of the House not to investigate charges of
crime against a member when denied by him and subject to prosecution in
the courts.
Libelous abuse of a defeated candidate by party adherents of the
returned Member for which the latter is in no way responsible does not
furnish grounds for contest.
A memorial of an equivocal character, not considered sufficiently
definite to be dismissed, was laid on the table.
As to criminal charges against a Member of the House the report
holds:
The paper of Mr. Bonniwell asserts that Representative Butler has
filed a false and fraudulent expense account under the State law as a
candidate for election as a Representative in the Sixty-third Congress.
This, if true, charges a crime against Representative Butler, but we
find that there is provided ample machinery under the laws of
Pennsylvania to try that charge. It has been the uniform practice of
this House not to investigate a charge of crime against a Member
Sec. 137
where it has been denied by him and where he can be legally prosecuted
in the courts. If Representative Butler shall be prosecuted under the
corrupt practices act of Pennsylvania and shall be found guilty, then
an entirely different proposition may arise upon which to memorialize
either this House or the House of the Sixty-third Congress.
The report condemns:
This committee can not condemn too strongly the publication of the
false and libelous article referred to in the paper of Mr. Bonniwell
and which was the spurious Knights of Columbus oath, a copy of which is
appended to the paper. It also condemns the publication of editorials
to excite religious prejudice in a political campaign. No man should be
prosecuted for his religion, whether he be Catholic or Protestant.
However, it is not alleged in the paper that Representative Butler
published or caused the publication of either the false oath or the
prejudiced editorials.
The jurisdiction of the committee is defined:
This committee does not intend either to inculpate or to exculpate
those who conducted the campaign and election in the counties of
Chester and Delaware, in Pennsylvania, in 1912. The campaign and the
election in general are not proper subjects for investigation by the
House of Representatives of the United States. The jurisdiction of the
House of Representatives in such matters is based solely upon Aritcle
I, section 5, of the Constitution of the United States providing:
``Each House shall be the judge of the elections, returns, and
qualifications of its own Members, punish its Members for disorderly
behavior and, with the concurrence of two-thirds, expel a Member.''
Under that power the House considers contests against the seat of a
Member holding a certificate of election and memorials against a
sitting Member or a Member about to take his seat under his certificate
of election charging him with offenses which if true justify his
expulsion from the House. The committee has already stated that it has
no jurisdiction over any contest filed by anyone claiming the seat from
the seventh congressional district of Pennsylvania in the Sixty-third
Congress.
In conclusion the committee recommend:
Upon a careful consideration of the paper in the nature of a memorial
filed by Mr. Bonniwell, and other papers and evidence therewith, the
committee report that there is nothing shown or alleged against Thomas
S. Butler which disqualifies him from holding his seat in the Sixty-
second Congress.
The committee therefore recommends the adoption of the following
resolution:
``Resolved, That the memorial of Eugene C. Bonniwell against Thomas
S. Butler, dated December 14, 1912, addressed to and filed with the
Speaker of this House, be laid upon the table.''
In debate on February 19,\1\ Mr. Henry M. Goldfogle, of New York,
took the position that the proper practice was to dismiss the memorial.
In reply, Mr. Covington said:
I will inform the gentleman from New York that in view of the
equivocal character of the paper filed by Mr. Bonniwell the committee
thinks the proper thing to do is to lay it on the table. We entertained
it as a memorial, and we report that in so far as this House is
concerned it contains nothing which warrants the committee in
presenting a resolution to vacate the seat of Representative Butler in
this House. We had nothing to do with whether or not there is pending
any contest, and thought it proper to provide simply that the memorial
do lie upon the table.
Thereupon, the resolution recommended by the committee was agreed to
by the House without division.
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\1\Journal, p. 277; Record, p. 3431; Moore's Digest, p. 60.