SPEECH 
 
 HON. JAMES H. BIRCH, 
 
 OF MISSOURI, 
 
 IN THE HOUSE OF REPRESENTATIVES. JANUARY 8. 1868. 
 
 * 
 
 The House having under consideration the report 
 of the Committee of Elections in the contested-elec¬ 
 tion case from the sixth congressional district of 
 Missouri— • 
 
 Mr. BIRCH (contestant) spoke as follows: 
 
 Mr. Speaker: I will proceed, under the 
 courtesy which has been extended to me by 
 the House, to address myself at once to the 
 great questions that are involved in the report 
 that has been made by the Committee of Elec¬ 
 tions in this case ; and as I shall not put it 
 upon the ground first remarked upon by the 
 distinguished author of the report, but upon 
 the broader general grounds upon which he 
 concluded his remarks, I will not even pause 
 to correct mistakes, unintentional, of course, 
 in the report of the committee. I will only 
 say that if reference had been made to page 
 24 of the testimony it wouid have been seen 
 that I ought to have had counted, of accepted 
 votes, 108 more, increasing my majority 10G 
 votes in the county of the contestee himself; 
 and that by referring to pages 26 and 48 it would 
 have been seen that the majority of the con¬ 
 testee should have been similarly reduced by 
 counting for me, on the accepted vote of Clay 
 county, a majority of 29 in Liberty township. 
 
 It is repeated, however, that I will consume 
 none of the time to which I am restricted in 
 such details of wrong doing, intending to base 
 my claim upon the broader grounds to which the 
 fair-minded author of the report alluded toward 
 the conclusion of his remarks. 
 
 I make no apology for appearing thus a sec¬ 
 ond time a contestant at your bar instead of 
 a member of your House. I made none four ! 
 years ago, when coming here upon a record 
 that was never finally acted upon, but which 
 upon various preliminary motions propitiated 
 for it a recognition and support not limited to 
 the party with which I then acted and yet act; 
 and as the record upon which . I am permitted 
 to speak to-day involves not only the same 
 great principles, but is a far stronger one, I 
 have, of course, no fear but that you will again 
 “ hear me for my cause.” 
 
 It is the cause, sir, of an upright, a noble, 
 and an outraged constituency; and in respect¬ 
 ful recognition of the discriminating intelligence 
 upon which alone I can hope for a discriminat¬ 
 ing adjudication of their controversy, the read¬ 
 ing of such depositions as have relation to the 
 
 educational antecedents of the thousands who 
 did not attempt either to register or to vote 
 in the election here in contest—and who are 
 hence parties to it in its constitutional sense 
 alone—will constitute my first duty. Many of 
 these were citizens of the first consideration and 
 intelligence; the rest, in the language of the 
 testimony, “good average people,” who either 
 ! acted upon the mistaken theories of their 
 i political education in going into arms against 
 the Federal authority, or by furnishing such 
 “ aid and comfort” to its adversaries as was 
 ! treasonable upon my political theories, but the 
 exact reverse upon theirs. Desiring merely 
 that this large class of non-registering and 
 non-voting citizens may not be improperly con- 
 j founded, on the one hand, with the totally dif- 
 j ferent class who did register and vote, either as 
 accepted or rejected voters ; and, on the other 
 hand, that their past and present conduct may 
 be appreciated in the light of official history, 
 I will read first from the deposition of James 
 i M. Riley, who testifies, mainly, as to the effect 
 | of certain military orders, of which he was an 
 I official administrator, and which we will come 
 to by and by, and then proceeds on page 52, 
 
 | as follows: 
 
 “ I have been farther requested, in this connection, 
 
 I to verify from the printed journal of the House of 
 1 Representatives, of the 16th of May, 1861, the pre¬ 
 amble and resolutions which were unanimously 
 adopted and sent forth by that body, for the purpose 
 of inciting the peoplo to tako up arms under the 
 then Governor of this State, in opposition to the Gov¬ 
 ernment of the United States. They are recorded on 
 pages 73 and 74 of said journal, and are as follows, 
 to wit: 
 
 Whereas wc have learned with astonishment and 
 indignation that troops in the service of the Federal 
 Government have surrounded and taken prisoners of 
 war the encampment, of State militia lately assem¬ 
 bled near the city of St. Louis, in pursuance of law 
 and by command of the Governor, for the purpose 
 alone of military instruction ; and whereas the United 
 States troops aforesaid, assisted by a mob armed 
 under Federal authority, have also murdered with 
 | unparalleled atrocity defenseless men, women, and 
 | children, citizens of Missouri, lawfully and peace- 
 I fully assembled: Now, therefore, 
 
 ' Resolved by the Jloune of Jieprcscntatii)es, (tlio 
 ' Senate concurring therein,) That we, the represent¬ 
 atives of thepooplc of Missouri, in General Assembly 
 1 convened, do hereby protest to the civilized world, 
 j and especially our sister States, against this illegal, 
 
 , unchristian, and inhuman violation of our rights by 
 j the capture of our militia, assembled under the Cou- 
 ; stitution of the United States and the constitution 
 of this State, and tho murder of our defenseless 
 i people. 
 
“ ‘ Resolved 2. That while Missouri has been loyal 
 to the Government, struggling for its reconstruction, 
 and is now sincerely desirous of an honorable adjust¬ 
 ment of existing difficulties, she has received as re¬ 
 ward for her fidelity, from persons assuming to act 
 under Federal authority, unparalleled insults and 
 wrong. An armed despotism, under infuriated par¬ 
 tisan leaders, has been inaugurated in our midst, 
 controlled by no law but passion, and actuated by 
 the deepest hate against the people of Missouri and 
 their institutions. Our railroads are now under mili¬ 
 tary occupation. The steamboat C. E. Ililltnan. en¬ 
 gaged in transporting goodsfrom the city of St. Louis 
 to the city of Nashville, has been seized by Govern¬ 
 ment troops within the jurisdiction of this Sta te and 
 the cargo taken out. The capital of the State is 
 openly threatened with capture, and our session is 
 now being held in the midst of armed citizens hastily 
 assembled for defense. 
 
 “ 'Resolved'. 3. That it is the unquestioned constitu¬ 
 tional right of the State to arm, equip, and organize 
 her militia for defense against aggression from any 
 quarter, and the attempt of Captain Lyon, acting, as 
 he says, under authority from Washington, to use 
 the exercise of this right as an excuse for his con¬ 
 duct, evinces but too clearly a disposition upon the 
 part of the authorities at Washington to disregard 
 and trample upon the sacred rights of the people of 
 Missouri. 
 
 "* Resolved 4. That the charge of Captain Lyon, in 
 his letter to General Frost, that the proceedings of 
 the State authorities, or of this General Assembly, 
 at any time, furnished a pretext for the course pur¬ 
 sued by him is entirely gratuitous and false. 
 
 "Resolved 5. That the Governor of this State is 
 hereby directed to make demand of the President of 
 the United States whether these outrages have been 
 authorized by the Government, and for the immedi¬ 
 ate return of the arms, camp equipage, and other 
 property belonging to this State, lately taken from 
 our military near St. Louis, and for the unconditional 
 release of our State troops. 
 
 Resolved 6. That the Governor is also requested 
 to take instant action by calling forth the militia of 
 the State for the purpose of defense, and that the 
 people of Missouri should rally as one man to perish, 
 if necessary, in defending their constitutional rights. 
 
 Resolved 7. That the Governor be requested to 
 furnish a copy of the foregoing preamble and resolu¬ 
 tions to the President of the United States and to the 
 Governor of each of the States.’ 
 
 ‘‘As already stated, these resolutions were adopted 
 without a dissenting voice of the members present, 
 among whom was the then representative from this 
 county, a Union man, (since and now a Radical.) but 
 acting then upon the political incentives and social 
 sympathies which were almost unanimous in this sec¬ 
 tion of the State, and which were but naturally re¬ 
 sponded to by great numbers in going into arms for 
 what was thus officially and unanimously represented 
 to them as the defense of their ‘constitutional rights.’ 
 Of the men who obeyed this and similar incitations 
 by going into arms, or otherwise giving‘aid and com¬ 
 fort to tho enemy,’ I am not aware of any that ap¬ 
 plied to register or vote at the last election. My 
 recollection is that they were specifically dissuaded 
 from doing so, not only in the published addresses 
 of the Conservative State committee, but by the 
 speakers and candidates of the Conservative party; 
 and if there was cast at the last election in this county, 
 either on the accepted or rejected list, a vote that 
 should have been rejected for disloyalty, either my 
 own views of loyalty are erroneous or the name has 
 not been mentioned in my presence.” 
 
 I have read, Mr. Speaker, and hold in my 
 hand the official journal to verify, if need were, 
 this exemplification of the unanimous official 
 incitation of the House of Representatives of 
 my State—of which thousands of copies were 
 ordered to be printed and circulated among 
 the people, and which I had everywhere to con¬ 
 front when addressing them in opposition to 
 theories thus speciously indorsed and promul¬ 
 gated. It is, perhaps, pardonable to add, sir, 
 that it was no holiday service, but that, on the 
 contrary, I met with many who had been ac¬ 
 customed to listen to mo with consideration 
 
 and courtesy upon previous political issues, who 
 seemed quite earnestly impressed that I ought 
 not to be listened to in opposition (as it was 
 argued) to the unanimous legislative incitation 
 of my State. It will suffice to add that great 
 numbers went into arms openly, in opposition 
 to all that could be essayed to the contrary 
 by those who haft at the time no sufficient 
 cooperation to prevent it. Of many “thou¬ 
 sands” of these, their excuse and their storj* 
 is so well related by one of their number as to 
 render it proper to read it, and to close thereby 
 the preliminary branch of the case with which 
 1 have been intrusted. 
 
 At page 54 Anthony W. Palmer deposes 
 and swears as follows : 
 
 “I am a citizen of Clinton county, Missouri, and 
 have been for the last thirty years. I was educated 
 in the political theory that State intervention, by 
 State authority, would be permissible and justifiable 
 as against unconstitutional Federal aggression; and 
 that in case of ultimate collision or conflict the 
 State would be entitled to the primary allegiance of 
 its citizens. 
 
 “In the spring of the year of 1861 the General 
 Assembly of this State passed a law to provide for 
 organizing, arming, and calling out its militia in 
 anticipation of such a conflict: and as it was exolicit 
 and peremptory in its provisions, I entered and con¬ 
 tinued in its service until the State convention of the 
 same year abrogated the said law, and proclaimed an 
 amnesty in favor of all who would renounce or aban¬ 
 don further survice under it. 
 
 “On the 8th of December. 1861. which was before 
 the expiration of the period to which the acceptance 
 of that amnesty was limited, I did so renounce and 
 abandon that service, not only by taking the oath 
 which was required of me, but by subsequently and 
 properly reporting myself in person to Colonel James 
 H. Birch, jr., who was the aid-de-camp of Provis¬ 
 ional Governor Gamble, for this military division of 
 the State. 
 
 “As the terms of the voters’ oath which was sub¬ 
 sequently prescribed by the same convention were 
 not retrospective beyond the period to which the 
 acceptance of that amnesty was limited, (sixty days, 
 expiring on the 17th December, 1861,) I continued of 
 course to be entitled to vote, and voted accordingly, 
 until a subsequent convention, which assembled in 
 the year 1865, divested me of the right, by incorpo¬ 
 rating in the new constitution an oath which is not 
 only retrospective as to the whole period of the 
 rebellion, but which included also all who had ever 
 sympathized with persons engaged in it. 
 
 “ As I could not honorably or conscientiously take 
 such an oath as that, I have not asserted my right to 
 vote, even against the adoption of the new constitu¬ 
 tion, which I feel so unjustly disfranchises me; and 
 this, notwithstanding others, upon whoseconcurrenco 
 and advice I acted in obeying the call of the State 
 authorities in 1861, have been permitted to register 
 and to vote in opposition to my views and those of 
 the conservative Union party with whom I would 
 have but naturally acted. Of these, the supervisor of 
 registration in this county, and its former represent¬ 
 ative in the Legislature, may be mentioned as among 
 its most prominent examples, and as examples only. 
 The former is proven, upon his own admissions and 
 otherwise, to have similarly sympathized with the 
 southern people, and to have advised others to go 
 into the State service (against the Federal author¬ 
 ities) just as I did: and the latter not only voted for 
 the military bill under which Price’s army was organ¬ 
 ized, but also voted (unanimously with the house 
 of which he was a member) that it was the duty of the 
 people of the State to do as so many of us did in de¬ 
 fense of what we were thus taught to believe were our 
 ‘ constitutional-rights.’ Of course I complain of this 
 in no other sense than that the registry law has been 
 so unjustly administered as to permit those who thus 
 incited us to go forward in what they officially de¬ 
 clared to be our duty in 1861 to register and to vote 
 for our disfranchisement, for no other reason than 
 that we acted in concurrence with their advice and 
 their law, so long as it was a law.” 
 
 * * * * ****** * 
 
“ I have since that period been attending to ray 
 ordinary pursuits as afarmcr—not, of course, indiffer¬ 
 ent to the course of public affairs—and have no doubt 
 that what is thus written of myself is substantially 
 true of thousands who were with me in the ‘State 
 guard,’ under the State law of 1861, but who declined, 
 as 1 did, to go into the confederate service (although 
 strongly pressed to do so) after the abrogation of that 
 law and the proffer of the just and generuus amnesty 
 already alluded to.” 
 
 It may seem superfluous to add, Mr. Speaker, 
 that these and every additional deposition I 
 shall read were taken under the eye and the 
 ear of the counsel for the contestee ; and that 
 it is intended in thus giving them to the ear of 
 the House, and afterward to its congressional 
 history, (or Globe,) to at least suggest and 
 establish for a class of citizens who were polit¬ 
 ically educated and officially incited to do just 
 as they did, a more charitable and statesman¬ 
 like appreciation of their motives and conduct 
 than may have been suggested by the interested 
 partisanry which is content to carry its point, 
 no matter how. To this, however, it is my 
 duty to add a repetition of the reliance, that 
 whatever may be thought of the motives or the 
 reasoning of the “ thousands ” thus alluded to, 
 and who the testimony will disclose did not 
 even attempt to register or to vote, their status 
 should be in no sense confounded, either in 
 the argument or decision I am respectfully 
 addressing myself to at this point and in this 
 connection, with the ever loyal citizenry who 
 did vote, and upon whose votes I solely relied 
 when claiming before your committee that it 
 was my right to come in, and sit, and act 
 amongst you here. 
 
 The case involves, however, another point 
 or purpose which may appropriately enough 
 be considered in the same connection, which 
 is, that citizens thus forgiven and amnestied 
 by the convention of 1801 were of course voters 
 upon the question of calling the subsequent 
 one in 18G-1; and as I expect to deduce from 
 the authorities, {including that of the committee 
 itself ,) and to demonstrate by argument, that 
 a convention which derived its sole authority 
 from the vote of such a political “people,” 
 (namely, all who could and would take the 
 prospective oath of loyalty, as ordained by the 
 first convention,) could in no respect transcend 
 that authority, and least of all by disfranchis¬ 
 ing its own constituency, without at least a sub¬ 
 sequent ratification by that constituency, it is 
 respectfully trusted that this deposition and the 
 one 1 will next read may at least be regarded 
 as pertinent to the governing guide of registerial 
 construction , upon which it will be presently 
 insisted that the right to the seat in contest 
 (or at least its vacation) should be made to 
 turn. 
 
 I will hence read another deposition, at 
 page 55, as demonstrating that it was not 
 merely such misguided and forgiven citizens 
 as Palmer and other ‘^thousands ” were with 
 whom the political contrivers and authors of 
 this new oath repudiated the most solemn 
 faith of their State, but also such ever peace¬ 
 ful and loyal citizens as Joseph B. Biggerstaff, 
 who could and did take the oath, but who was 
 imperiously and successfully “construed’'' out 
 
 \ 
 
 of his vote, as will appear from his deposition, 
 as follows : 
 
 “ I reside in Plattsburg, Clinton country, Missouri, 
 and have so resided, with the exception of a year or 
 so I resided on my farm, (in the same county,; for 
 the last twenty-four years. I was one of more than 
 a hundred and fifty citizens who desired and applied 
 to take the oath of loyalty, and to cast our votes in 
 opposition to the ratification of the new constitution 
 at the election which was held for that purpose at 
 Plattsburg and throughout the iState on the 6th day 
 of June, 1865. 
 
 " Being refused permission to do this by the elec¬ 
 tion judges, on the ground that our names appeared, 
 with others, upon a list or enrollment that had been 
 made by Certain military ollicers during the latter 
 part of the year 1862, as ‘southern sympathizers,’wo 
 complained of it in a respectful written protest, 
 which was simultaneously prepared and forwarded 
 to the Governor, in consequence of which the mate¬ 
 rial facts of the case remain more distinctly im¬ 
 pressed upon my memory than they otherwise might 
 have done. 
 
 “ I was personally acquainted with many of the 
 persons thus rejected as voters. They were orderly 
 and upright citizens, several of whom had been re¬ 
 jected as militiamen when the companies came to bo 
 reorganized under ‘ Order No. 24,’ but I had no rea¬ 
 son to believe that they had done anything which 
 disentitled them to take the prescribed oath and to 
 vote as they had always done, unless that oath was 
 to be construed (as it then was and has since been) to 
 mean that the decision of these military classifiers 
 was final, and that the sympathies which many of us 
 but naturally entertained for a kindred southern 
 people should disentitle us to avote, under a Govern¬ 
 ment to the laws and requirements of which we had 
 always loyally conformed ourselves, and especially 
 (as was then the case) upon the question of our own 
 permanent disfranchisement. Such an assumption 
 I knew to be the reverse of either truth or justice in 
 respect to my own loyalty, and I had no reason to 
 believe it was less unjust and untrue with respect to 
 others who were similarly refused the right to vote 
 at that election, or since, in which it appears that 
 only about half the citizens of the county or the State 
 were permitted to participate.” 
 
 While the manner in which the committee 
 have condensed and stated the propositions I 
 argued before them is sufficiently lawyer-like 
 and fair, it is nevertheless proper to be sug¬ 
 gested, that in deference to the judgment of 
 those who thought my object could be as well 
 or better attained by simply relying upon the 
 terms of the enabling act of the convention to 
 fix and limit the construction of their ambig¬ 
 uous and unratified “ oath,” it was dwelt upon 
 in my “ brief,” as it will be in this connection, 
 mainly with that view. It matters not, of 
 course, that upon the general proposition of 
 the absolute nullity of the so-called new con¬ 
 stitution, as a constitution, the opinion that 
 is so common with the more eminent of my 
 professional contemporaries and friends con¬ 
 tinues to be my own opinion, and that in 
 another connection, and for a purpose more 
 all-embracing, I may at least condense the 
 reasons for that opinion. Until then it will 
 suffice to add that the argument of my “brief,” 
 upon which “ the committee did not deem itself 
 at liberty to enter,” will be substantially my 
 argument in this connection. 
 
 In that “ brief,” Mr. Speaker, I quoted from 
 the law of my State entitled “An act to pro¬ 
 vide for calling a State convention”—the 
 organic or enabling act, as it will be called 
 through the course of this argument—its fifth 
 section, as follows: 
 
 “Sue. 5. The delegates elected under tho provis¬ 
 ions of this act shall assemble in St. Louis on tho 
 
6th day of January, 1865, and organize themselves 
 into a convention by the election of a president and 
 other officers, as they may deem necessary, and shall 
 proceed to consider, first, such amendments to the 
 constitution of the State as may be by them deemed 
 necessary for the emancipation-of slaves; second, 
 such amendments to the constitution of the State as 
 may be by them deemed necessary to preserve in 
 purity the elective franchise to loyal citizens, and 
 such other amendments as may be by them deemed 
 essential to the promotion of the public good.” 
 
 At the date of this enactment the elective 
 franchise in that State was regulated by a con¬ 
 stitutional provision which granted the ballot 
 to all white males of the requisite age and 
 citizenship, and by the oath contained in an 
 ordinance of a previous State convention, 
 adopted on the 10th day of June, 18G2, in 
 these words : 
 
 “I, A B, do solemnly swear (or affirm, as the caso 
 may be) that I will support, protect, and defend the 
 Constitution of the United States and the constitu¬ 
 tion of the State of Missouri against all enemies and 
 opposers, whether domestic or foreign; that I will 
 bear true faith, loyalty, and allegiance to the United 
 States, and will not, directly or indirectly, give aid 
 and comfort or countenance to the enemies or op- 
 posers thereof, or of the provisional government of 
 the State of Missouri, any ordinance, law, or reso¬ 
 lution of any State convention or Legislature, or of 
 any order or organization, secret or otherwise, to 
 the contrary notwithstanding; and that I do this 
 with a full and honest determination, pledge, and 
 purpose faithfully to keep and perform the same 
 without any mental reservation or evasion what¬ 
 ever. And I do further solemnly swear (or affirm) 
 that I have not, since the 17th day of December, 
 A. D. 1861, willfully taken up arms or levied war 
 against the United States or against the provisional 
 government of the State of Missouri: so help me 
 God.” 
 
 As rendering intelligible the reason for desig¬ 
 nating the prospective period and operation to 
 which this oath was restricted, it is deemed suffi¬ 
 cient to recur to the depositions of Riley and Pal¬ 
 mer, which were read at the opening of this 
 argument, and to add that by other provisions 
 of this law the calling and holding of said con¬ 
 vention were made to depend upon a vote of 
 the people of the State—the ninth and tenth 
 sections of the organic act, from which section 
 five has been already quoted, being in these 
 words : 
 
 “Sec. 9. All porsons qualified to vote for members 
 of the General Assembly, under existing laws and 
 ordinances, shall be entitled to vote for delegates to 
 said convention. 
 
 “Sec. 10. At the times and places of voting afore¬ 
 said the qualified voters of said State shall be per¬ 
 mitted to vote ‘for a State convention’ or 'against a 
 State convention,’and the votes so cast shall be re¬ 
 turned to the secretary of State, with the returns for 
 delegates to the convention; and if a majority so 
 voting shall have voted ‘for a convention’ the con¬ 
 vention shall assemble and proceed to the discharge 
 of the duties assigned to that body under this act,” Ac. 
 
 It is admitted that the majority of those “ so 
 voting” was “for a convention;” that such a 
 convention assembled, as it was authorized to 
 do, in the city of St. Louis, on the 6th day of 
 January, 1865, and proceeded, as is shown by 
 its journal, to ordain an entire “new consti¬ 
 tution,” which shows upon its face that it was 
 not to be submitted for ratification to the con¬ 
 stituency or “people” who had authorized its 
 election and assemblage for the purposes speci¬ 
 fied in the organic act, (and without whose rat¬ 
 ification it is respectfully submitted they could 
 
 not be divested of any right to which they had 
 not contingently assented by their vote, which 
 only authorized a convention to be elected for 
 the specific purposes enumerated in the said 
 organic act,) but to a new constituency or 
 “people,” as set forth in the new oath, (here 
 in contest,) which, by the terms of said new 
 constitution, was to be required of all persons 
 voting upon it. 
 
 UNFAIRNESS OF THE REGISTRATION. 
 
 By one of the clauses of this new oath every 
 applicant tor registration as a voter has to swear 
 that he has never, “with a view to avoid enroll¬ 
 ment in the militia of this State, or to escape the 
 performance of duty therein, or for any other 
 purpose, enrolled himself or authorized himself 
 to be enrolled by or before any officer as disloyal 
 or as a southern sympathizer, or in any other 
 terms indicating his disaffection to the Govern¬ 
 ment of the United States in its contest with 
 rebellion.” To this it may appropriately be 
 added in this connection, (subject to the testi¬ 
 mony to be presently referred to,) that loyal men 
 who readily took this oath were nevertheless 
 rejected as voters upon a simple inspection of 
 the military enrollments of 1862, which are 
 proven to have been made up, “as a general 
 rule,” upon principles alike at variance with 
 justice and with true “loyalty,”, by an officer 
 who had “no discretion in the matter;” and 
 that “ every man, who had at anytime sympa¬ 
 thized with the people in rebellion,” (as they 
 had all been taught to do,) or “whose sympa¬ 
 thies were” even “ regarded as being with the 
 South,” was entered on the so-called disloyal 
 list, although protesting his loyalty to the Gov¬ 
 ernment of the United States.” Respectfully 
 repeating the hope that these fundamental offi¬ 
 cial facts may not even inadvertently be lost 
 sight of by the House, my next reference will 
 be to a previous portion of the deposition of 
 Colonel Riley, to be followed with that of Cap¬ 
 tain Ferguson, as to the class or status of the 
 men who w T er q forced upon this “so-called dis¬ 
 loyal list,” and which was not .only made the 
 basis of the registerial enrollment in the elec¬ 
 tion here in controversy, but against the show¬ 
 ing of which, it may as well here be quoted 
 from the testimony, the registering officers 
 “would hear no testimony.” 
 
 At pages 51 and 52 Colonel Riley testifies as 
 follows: 
 
 “ I have resided in the town of Plattsburg, Mis¬ 
 souri, from my infancy, and am in my twenty-ninth 
 year of age. I am a lawyer by profession, and hav¬ 
 ing been variously connected with the State mili¬ 
 tary service during the late rebellion, I have been 
 requested to condense the import and effect of the 
 various military orders for the enrollment of the 
 State militia, including the political consequences as 
 resulting from what is termed the oath of loyalty in 
 the new constitution. 
 
 “The first general order for an enrollment of the 
 State militia was numbered 19, and was issued on 
 the 21st of July, 1862. It recited the necessity for 
 such enrollment and organization, with a view to 
 arrest and prevent robberies, murders, and lawless¬ 
 ness of bushwhackers and other marauders; and as 
 it made no distinction between citizens of different 
 political sympathies, a public meeting was immedi¬ 
 ately called and held in the court-house, at which it 
 was resolved without dissent, upon the motion of 
 Judge Birch, that the call for said enrollment would 
 
5 
 
 be promptly responded to by all the men of this 
 county subject to military duty. Within a few days 
 a large company, comprising citizens of all shades of 
 political opinion, formed into a company and com¬ 
 pleted their organization by electing officers alike 
 diverse in their opinions or political sympathies, 
 and the work appeared to be similarly proceeding in 
 other parts of the countv, when a subsequent order, 
 dated on the 28fh of July, and numbered twenty- 
 three, left it at the option of persons who preferred 
 to contribute money rather than personal service in 
 the militia, to dosot There were many who preferred 
 to pay the exemption fee, which was fixed at ten 
 dollars, and was to be used as a fund for defraying 
 the expense of the militia who were called into active 
 service. Some did thus obtain exemption, and 
 others were preparing to do so, when an entire new 
 turn was given to the whole matter of military enroll¬ 
 ment and organization by the appearance of Order 
 No. 21. This order, which was issued on the 4th of 
 August, 18d2, revoked Order No. 23, and directed an 
 enrollment to be made of “all the loyal who were 
 subject to military duty,” for military purposes, and 
 that "all disloyal men and those who had at any 
 time sympathized with the rebellion” should be I 
 separately enrolled on another list, and not “per¬ 
 mitted to do duty in the Missouri militia.” Incon¬ 
 sequence of this last order, together with the others, 
 the town company that had completed its organiza¬ 
 tion. and others that were improcess of organization 
 in other parts of the county, had to be broken up 
 or modified, inasmuch as those of them who were 
 regarded as of southern feelings or sympathies were 
 not permitted to enter the military service in the 
 said militia. 
 
 “ I was myself an enrolling officer, and also an offi¬ 
 cer in one of the companies that was organized and 
 went into active service underOrder No. 24. And it 
 is hence within my personal as well as my official 
 knowledge that the militia thus actively engagedhad j 
 to be supplied with horses; and sueh as were needed ! 
 by the men who had none were taken from the men I 
 who were not permitted to enroll with us for active 
 service—such being the result of the order under 
 which we went into active service. 
 
 “ It is within iny knowledge that many who were i 
 thus refused, or not permitted to enroll in the mil ilia, j 
 and who were consequently enro'led on what “as 
 called the sympathizingor disloyal list, were rejected 
 as voters during the period of last year’s registration, 
 and for no other reason that I am aware of than that 
 their names were found upon the list aforesaid. 
 Quite a number of these I have a sufficiently intimate 
 acquaintance with to form the opinion that they were 
 as loyal citizens as I am myself admitted to have 
 been. They so far differed with me in respect to what 
 came to be termed their sympathies, or in the ex¬ 
 pression of them, as to be refused permission to act 
 as militiamen : but I regarded such syinpar,hies, with j 
 persons of their nativity or associations, as being but 
 natural and not at all disloyal.” 
 
 Deferentially relying that, with the patient 
 attention of the House, it will find me making 
 the necessary legal connections at the proper 
 time, 1 will next read from the testimony of 
 Captain Ferguson, in corruooration of that of 
 Colonel Riley, as follows: 
 
 “I have read that portion of the deposition of 
 Colonel Riley (thisday given in the contested-election 
 case of Birch vs. Van Horn) which relates to the 
 enrollment and organization of what he styles the 
 Plattsburgcompany, under General Order No. 19, and 
 concur in the general correctne-s of his statements. 
 
 I was elected captain of said company and marched 
 with it (under orders) to Cameron, a distance of 
 eighteen or twenty miles, to join with others in pur¬ 
 suit of the rebel Colonel Poindexter; but when we 
 reached Cameron, it was found that, there was enough 
 without ih, and we were permitted to return home. 
 
 A few days after this Order No. 24 was issued and 
 promulgated, and as my command contained quite a 
 number of men whoso sympathies, as they were 
 termed, were supposed to be southern, it had to be | 
 broken up or modified, as stated by Colonel Ililey. 
 
 “ I was also present at Cameron a few days after¬ 
 ward, when a company similarly organized, under I 
 the command of Captain (afterwardColonel) Parrott, j 
 was dissolved, or rather some fifteen or sixteen men 
 were dismissed from it on account of their alleged ! 
 
 sympathies. I was not regarded as having such 
 sympathies, became subsequently the assessor and 
 sheriff of the county, and have always been allowed 
 my vote.” 
 
 May it not be appropriately suggested at this 
 point, that by recurring to the testimony of 
 Riley as t o the similar breaking up of other com¬ 
 panies that were in process of organization in 
 other parts of the county, and by accepting 
 the statement of Ferguson as to the number of 
 fighting ‘‘sympathizers” who were thusdriven 
 from his company, and that of Captain Parrott, 
 as the probable average of the district, the 
 aggregate will be found to so nearly correspond 
 with the aggregate of the rejected votes which 
 were so conscientiously sworn into the ballot- 
 boxes for me, as to justify the conclusion that, 
 under the “general rule” which is recited by 
 the enrolling otlicers, the men who had armed 
 and marched and bivouacked in pursuit ot 
 Poindexter, were to that extent schemingly 
 and cruelly driven from the defense of your 
 standards and transferred to the “so-called 
 disloyal list of southern sympathizers?” 
 
 How came all this to pass, Mr. Speaker? 
 The testimony of Viglini, at page 8, forecasts 
 alike the process antrthe wrong, as follows: 
 
 “ Question . What office did you hold during the l.i te 
 rebellion, and what duties did you perform under 
 General Schofield’s Order No. 24? 
 
 “ Answer. I was one of the justices of the county 
 court of Clinton county, and was provost marshal 
 of said county. In connection with the latter office 
 I had the duty assigned me by Lieutenant Colonel 
 Swearingen of enrolling the citizens of said county 
 on what was called the loyal and disloyal lists. On 
 the loyal list it was my duty to enroll for military 
 purposes all male citizens between eighteen and 
 forty-five years of age; and on the so-called dis¬ 
 loyal list it was ray duty to enroll all citizens of 
 whatsoever age who had at anytime sympathized with 
 the people in rebellion. I had no discretion in the 
 matter, nor had the people. The enrollment of the 
 county was made, therefore, as directed by General 
 Schofield’s Order No. 24 and the explanatory circular 
 of Brigadier General Ilall, dated September 25, 1862. 
 The total number enrolled on the so-called disloyal 
 list was over six hundred. In the enrollment of the 
 county, as a general rule, every man whose sympa¬ 
 thies were regarded as being with the South was 
 entered on the so-called disloyal list, although pro¬ 
 testing his loyalty to the Government of the United 
 States.” 
 
 The next revelation—may it please the 
 House—the next revelation in the history of 
 this forecasting and deliberate political injus¬ 
 tice will but naturally be to demonstrate from 
 the testimony, that the contemned and out¬ 
 raged “loyalty” which had been thus enrolled 
 as disloyal despite its submission to the ordeal 
 of rebel fire, was, with equal lieartlessness, 
 under a like systematic and inexorable “instruc¬ 
 tion” or 11 rule" refused registration upon the 
 list of “accepted” voters, and had to register 
 and to vote as “rejected” voters; and that 
 your whole practical duty will consist in decid¬ 
 ing whether such a registration was just or 
 unjust , legal or illegal right or wrong. 
 
 The first testimony I will read ityon this point 
 will be that of Harvey Springer, a friend and 
 supporter of the contestee, (as every register¬ 
 ing officer of the district was supposed to be,) 
 but one of the few who was not himself a can¬ 
 didate on the same ticket with him, and who 
 had hence no personal reason to either shirk 
 
6 
 
 my subpoena or evade my questions—and it is 
 but just to add too upright a man to have 
 done so—and who hence appeared and swore 
 as follows: 
 
 “ Question . Were you appointed by the supervisor 
 of registration for this county register for this (Con¬ 
 cord) township ? 
 
 “ Answer . I was. 
 
 “ Question . Did the supervisor furnish you with a 
 list of names said to be of men who were said to be 
 enrolled as disloyal under General Schofield’s Order 
 No. 24 as disloyal persons? If so, what were the 
 supervisor’s instructions, and what were your actions 
 when said persons came to be registered? 
 
 “ Answer . The supervisor furnished me a list cer¬ 
 tified by him to be a copy of the sympathizing list 
 of this county, with instructions that all such persons 
 when they applied for registration should be put on 
 the rejected list, and which was accordingly done. 
 
 “ Question . Were not the most of the men you 
 rejected as voters on that list? 
 
 “ Answer . All the men rejected by me except four 
 were on that list, and were rejected for that reason. 
 
 “ Question. Did every person who was put on the 
 rejected list by you take the oath of loyalty presented 
 by the new constitution ? 
 
 “ Answer . Every one was required to take the said 
 oath of loyalty before he was even put on the rejected 
 list.” 
 
 There is a cross-examination of this witness, 
 as of several others, which but confirms my 
 judgment of the forecasting injustice of the 
 registerial construction which is in issue here— 
 a construction which was carried into a general 
 instruction, and which practically and peremp¬ 
 torily forbade the right of loyal or accepted 
 registry to even the sympathizing soldiery of 
 the district, whose obedience to the call of 
 the loyal general, now a member of this 
 House, [Mr. Loan,] when marshaling a force 
 to drive from the country a daring and popular 
 rebel leader, need not be further dwelt upon. 
 That such men were not disloyal; that on the 
 contrary their sympathies, as has been so well 
 sworn to by one of the mustering officers, were 
 “ but natural to persons of their nativity and 
 associations;” and that having from first to 
 last repressed or subordinated these natural 
 sympathies to the sterner behests of loyal duty — 
 just as I may be pardoned for adding my own 
 were, and yet are, repressed—the registerial 
 “ rule'’ under which they were so schemingly 
 and so cruelly ostracized, and which will be 
 more patiently examined by and by, was so cal- 
 culatingly, so deliberately, and so atrociously 
 unjust, as of itself to constitute palpable and suf¬ 
 ficient grounds to at least set aside an election 
 which was held under such a registration. 
 
 But I have not yet done with the testimony 
 of the friends of the contestee as to this delib¬ 
 erately concerted and deliberately executed 
 malregistration. By the testimony of Hunt, 
 at pages 12 and 13, it will be seen that he was 
 a member of the convention which nominated 
 the contestee, and that he was compelled to 
 swear, in answer to the searching question of 
 my attorney, that the members of that conven¬ 
 tion (at which the contestee was present) 
 11 expressed themselves that only in the rigid 
 enforcement of that law could Judge Birch be 
 beaten,’’ and that “such were the views and 
 purposes of that convention.” No wonder, 
 Mr. Speaker, that a lawyer as astute and fore¬ 
 casting as the cross-examining attorney for 
 
 11 
 
 the contestee is conceded to have been should 
 I object (as he did, page 13) to the answering 
 of the question which drew out such an answer, 
 combined with such an admission. He, too, 
 was a representative friend and supporter of 
 the contestee, and was of course profession¬ 
 ally aware that such an answer as Hunt or 
 any other honest member of the nominating 
 convention would be compelled to make to 
 such a question, would establish the general 
 concurrence that the success of the sitting 
 member could only be achieved against me by 
 exactly reversing the unshaken judicial rule 
 for construing statutes of the nature of the 
 Missouri registration law; and that to thus 
 show that such was the mutual and concurrent 
 “purpose” with which the supporters of the 
 contestee returned from their convention, 
 would but naturally explain and illustrate, to 
 the degree of indignant and general vitiation, 
 a registration which was as illegal in “pur¬ 
 pose” as it was utterly shameless in practice. 
 
 Without feeling impermissible in this con¬ 
 nection to direct your attention to the deposi¬ 
 tions from other counties, as to what I was 
 prevented from proving by the “ sustained'" 
 objections of the contestee’s attorney, I but 
 refer, at page 17, to the deposition of Bassett, 
 another of his leading supporters in my own 
 county, as corroborating that of his conven¬ 
 tional one, and will no longer restrain myself 
 from the legal “connection” sometime since 
 alluded to, and which will be a substantial 
 resume of the “brief” from which I have so 
 long, but I trust rather illustratively, digressed. 
 
 ILLEGAL CONSTRUCTION OF TnE OATH SO AS TO 
 
 REJECT MEN WHOSE CONDUCT WAS “NOT EVEN 
 
 BLAMEWORTHY.” 
 
 That the oath in contest here, especially in 
 the official construction which was everywhere 
 given to it by the officers of registration, was 
 more restrictive of the elective franchise than 
 was authorized by the organic or enabling act 
 of the Legislature, which was simply to “pro¬ 
 ceed to the duties assigned to them under that 
 act,” or, in other words, as to the question 
 here, to “ consider of such amendments to the 
 constitution of the State as may be by them 
 deemed necessary ” “to preserve in purity the 
 elective franchise to loyal citizens,” will be 
 judicially apparent by reference to the second 
 paragraph of the opinion and decision which 
 was rendered by the Supreme Court of the 
 United States at its last term, wherein John 
 A. Cummings was plaintiff in error and the 
 State of Missouri defendant in error, namely: 
 
 “ The oath prescribed by the constitution, divided 
 into its separable parts, embraces more than thirty 
 distinct affirmations ortests. Some of the a«ts against 
 which it is directed constitute offenses of the highest 
 grade, to which, upon conviction, heavy penalties are 
 attached. Some of the acts have nevc-r been classed 
 as offenses in the laws of any State, and some of the 
 acts, under many circumstances, would not be even 
 blameworthy.” 
 
 May it not be unhesitatingly submitted that 
 a convention which had no authority conferred 
 upon it in respect to the elective franchise, 
 except, at the farthest, such a restriction of it 
 as should preserve it “in purity to loyal citi- 
 ! zens,” was but necessarily without authority 
 
7 
 
 * u I 
 
 to disfranchise a class of men which all the 
 testimony has shown, and will continue to 
 show, were themselves “loyal citizens,” and 
 whose alleged “sympathies” or “acts,” it has 
 been seen,’ and will continue to be shown by 
 the testimony, were “not even blameworthy?” j 
 And could such a construction as was given ■ 
 to the clauses of the oath in contest by the j 
 registering officers of the district, who are 
 proven to have been the friends and supporters 
 of the contestee, have been in any respect 
 legalized by an election in which those citizens 
 were not allowed to participate? Or, if legal¬ 
 ized at all, as it may be argued it should be, 
 for the sake of the public tranquillity, may it 
 not be additionally and undoubtingly submit¬ 
 ted, that the only permissible construction of 
 “the said oath” is fixed, not merely by an 
 unvarying current of judicial decisions, which 
 lean to the side of the “people” who were 
 voters on one day and menaced with disfran¬ 
 chisement the next day, but by the unyielding 
 terms of the fifth section of the organic act 
 itself; and that no construction was permis¬ 
 sible which transcended the object or purpose 
 to which (in this respect) the convention was 
 restricted, namely, “such amendments to the 
 constitution of the State as may be by them 
 deemed necessary” “to preserve in purity 
 the elective franchise to loyal citizens?” 
 
 Who were “loyal citizens,” who “ the peo¬ 
 ple,” at the date and by the recognition of 
 that organic act? Were those who had mis¬ 
 taken their “paramount allegiance,” as Pal¬ 
 mer and “thousands of others” did, but who 
 condoned their error and placed themselves in 
 true allegiance, under the ordinance and the 
 amnesty (State and Federal) of 1862, any less 
 entitled to voting citizenship than other citi¬ 
 zens were? xYnd having been recognized as 
 citizens and voters by the organic act upon 
 which they were called to vote in 1864, and 
 which was to give to the convention, if called, 
 all the authority it would possess in respect to 
 the elective franchise, could such citizens and 
 voters be disfranchised, as the contestee as¬ 
 sumes they have been, unless they were out¬ 
 voted at an election in which they, too, were 
 allowed to participate? It would seem that 
 where the very gist, of their complaint is that 
 they gave the convention no authority to dis¬ 
 franchise them, without at least a proper sub¬ 
 sequent ratification, all such questions as the 
 foregoing must be necessarily answered in the 
 negative; and that if so, it at least decides 
 and enstamps the “construction” which the 
 oath in question should have received, instead 
 of the exact reverse, to which probably every 
 page of the record bears testimony that it was 
 misused and perverted. 
 
 Had these supervisors and registers the right, 
 or was it legal and right in them , to disregard 
 this fundamental guide to a just and proper con¬ 
 struction of this purposely ambiguous “oath,” 
 and to so contemn and disregard the organic 
 limitation which was imposed upon the con¬ 
 vention itself, as to absolutely exclude from 
 registration, as “accepted” voters, the “loyal 
 citizens ” whom the record sdiows to have been 
 
 obedient to every legal requisition, including 
 prompt and faithful military duty, until they 
 were schcmingly and cruelly driven from that 
 service by the construction which was placed 
 upon a new military order (No. 24), for “sym¬ 
 pathies” which seem always to have been 
 subordinate to their “loyalty,” and which, in 
 the language again quoted from the court of 
 last resort, “were not even blameworthy?” 
 That these partisan registers—many of them 
 candidates on the same ticket with the con¬ 
 testee—did give to the constitutional and con¬ 
 curring (?) legislative enactment upon this 
 point a latitude of construction which not only 
 transcended but practically defeated the limit¬ 
 ation to which the organic act (and the peo¬ 
 ple in voting for it) restricted the convention, 
 has been proven by the testimony of Register 
 Springer, (as to the so-called sympathizing lists 
 which were made by the military authorities 
 in 1862, and by which the registering ofiicers 
 were instructed to be governed,) and by the 
 concurring testimony of Viglini, Riley, Rigger- 
 staff, and Ferguson, already 'referred to, in 
 Clinton, and of Hale, Brand, and others in 
 the counties of Carroll, Saline, Platte, and 
 Clay—pages 30, 31, 40, 43, and 45. By this 
 testimony it will be seen that the mere fact of 
 having been enrolled on the “sympathizing 
 list” of 1862 by the military subordinate for 
 the time being—whether with, without, or even 
 against the consent of the citizen—was to be, 
 and was, regarded as “conclusive evidence” 
 upon the point of his disloyalty; and that neither 
 the registering officer nor the board of appeals, 
 which consisted of the instructing supervisor 
 and the thus instructed registers alone, “would 
 hearany testimony in opposition to it.” 
 
 Were, then, the 2,825 voters, which are proven 
 to have been either registered and polled for 
 the contestant as “rejected” voters, or rejected 
 from his poll of “accepted” voters by the 
 county canvassers of Clinton, Clay, and Jack- 
 son, legally or illegally rejected—at least in 
 the proportion established by Register Springer, 
 and which it is but fair to assume as the pro¬ 
 portion throughout the district? Referring 
 again to the testimony of the military enrolling 
 officers, and to the answer which had to be 
 everywhere made to “question 29,” (page 19;) 
 referring also to the testimony, which but re¬ 
 peats the law, that every citizen whose name 
 and vote stand thus recorded as “rejected” 
 had taken and subscribed the so-called “oath 
 of loyalty” in full; and that if falsely taking it 
 they subjected themselves almost inevitably to 
 prosecutions for perjury before courts and juries 
 from whom they could at least expect no 2 )olit- 
 ical favor as against the partisan registers who 
 had rejected them; and that, notwithstanding 
 thesixty days’ additional time which was allowed 
 to the contestee, in which to take rebuttingand 
 other testimony in this case, he has placed 
 nothing upon the record to denote that even an 
 indictment had been found against cither of 
 these supporters of the contestant for having 
 sworn falsely, throughout the district, in order 
 to get in a majority, upon my count, of 2,236 
 in my favor—if of this vast number of rejected 
 
8 
 
 voters, whose status is written down as that of 
 “loyal men” in the uncontradicted and even 
 unrebntted record they have had presented for 
 your consideration—if with this, and the sys¬ 
 tematic and all-pervading unfairness and fraud 
 which the testimony establishes against the 
 registration and other official acts of the friends 
 and supporters of the contestee, from its open¬ 
 ing page to its concluding paragraph, it may 
 not be presumptively computed "and concurred 
 in, that at least enough of them to have elected 
 the contestant were not “disloyal” in the sense 
 of the organic construction to which this oath 
 must necessarily be subordinate— if this may not 
 he so , the contestant must needs submit to have 
 his judgment corrected by the majority of the 
 House, in the view he has thus alone insisted 
 upon as entitling him to the seat in controversy. 
 
 THE REGISTERING OFFICERS THEMSELVES THE MEN 
 
 WHO COULD LEAST TRUTHFULLY TAKE THE OATH. 
 
 Looking a little further into the record, as 
 the only permissible basis for the argument or 
 the final disposition of this case, it will be seen, 
 at page 13, that George Funkhouser swears that 
 he had been sheriff for two years preceding the 
 election, the latter part of the time being ne¬ 
 cessarily under the appointment of Governor 
 Fletcher, and hence removing even a suspicion 
 as to his loyalty; that he had previously, for a 
 number ofyears, been sheriffand deputy sheriff, 
 and was hence well acquainted with the people 
 of the county, including those whose votes had 
 * been rejected under the new constitution, and 
 that he did not regard the sympathies of those 
 with whom he was thus “ well acquainted” as 
 amounting to disloyalty to the Government of 
 the United States, but that, on the contrary, 
 they were peaceable, law-abiding and law-.sus¬ 
 taining citizens, claiming to be loyal notwith¬ 
 standing their sympathies. 
 
 In answer to the question which was con¬ 
 structed (in hcec verba) upon the specific charge 
 that was made against a portion of my sup¬ 
 porters, in this county and elsewhere, in the 
 closing paragraph of the answer of the con¬ 
 testee, he swears specifically that he does not 
 “know or believe that any person of known 
 disloyalt} 7 , who had been in arms against the 
 United States or the State of Missouri, or 
 who had given aid and comfort to the enemies 
 of the United States or the State of Missouri, 
 Qr any outlaw, guerrilla, bushwhacker, or other 
 disloyal person, disqualified under the laws of 
 the State, was permitted to vote in the election 
 here in contest.” Viglini, the old provost 
 marshal and enrolling officer, answers this 
 question as Funkhouser did, except as to the 
 county supervisor of registration, and he, it is 
 proven, was elected sheriff on the same ticket 
 with t \\q contestee —and substantially the same is 
 sworn to in other counties. Johnson swears that 
 he had resided in the county for upward oftwenty 
 years, had been twice a judge of the county 
 court, was generally acquainted with the peo¬ 
 ple ; and having replied to the charge of the 
 coniestee, just as the old sheriff did, answers 
 further and still more specifically, under the 
 Cross-examination of the counsel for the con¬ 
 testee, that he does “not know of any man 
 
 voting on the rejected list who was disloyal 
 within the meaning of the terms of the new 
 constitution.” 
 
 And yet the contestee neither condescends 
 or ventures to take any testimony, either to 
 sustain the charge upon which it was 'perhaps 
 mistakenly relied to bluff or badgerthe Repre¬ 
 sentative of the people thus provenly calumni¬ 
 ated, or to attempt to even modify the record 
 upon which I appeal for your verdict against 
 the systematic and all-embracing injustice of a 
 most shameless registration! May I not suc¬ 
 cessfully submit to the House whether such a 
 neglect to avail himself in this respect of the 
 additional “sixty days” yougavehirn is cura¬ 
 ble or even excusable in the too charitable pre¬ 
 sumption of the committee as to what he might 
 have done but did not do ; or by such of his 
 cross-examinations as prove that my political 
 status does not accord with that of a majority 
 of the tribunal before whom I have brought my 
 case as judges, not as partisans. 
 
 I might quote still further corroborations of 
 the effect of the systematic and well nigh mad¬ 
 dening perversions of an oath which, whether 
 purposely ambiguous or not, (so that its prac¬ 
 tical construction might be either plastic or 
 stubborn, according to the interest and the 
 “ purpose ” of the party who had it all in their 
 own hands,) I have abundantly proven toas mis¬ 
 construed and misadministered. As denoted 
 elsewhere I might still further enforce and am¬ 
 plify this position by reading and remarking 
 upon the testimony of Lyons and Hughes, of 
 Whittington and the Clays, in my own county, 
 and upon that of Brand, Myers, Hale, Standley, 
 Williams, Winfrey, Sandidge, Norton, Lewis, 
 Wilson, Roberts, Fisher, O’Nan, Adkins. Moss, 
 Hallisey, and Garner in other counties; but 
 permit it to suffice, in recognition of your long- 
 taxed patience, that as the testimony from my 
 own county contains not even an insinuation to 
 the disparagement of the practical loyalty of its 
 rejected voters, and as we are tacitly tryingthis 
 case on the testimony from that county alone— 
 not so strong in some respects as the testimony 
 from other counties, but conceded to be (as 
 suggested by the committee) a fair or average 
 “specimen of the evidence relied on”—we 
 will pass at length to the legal propositions 
 which I so deferentially, yet earnestly propose 
 to contest with the committee. 
 
 That being perhaps the only contest between 
 us in the view of the case now; under considera¬ 
 tion, it may be conceded to the erudite and 
 distinguished author of the report that my less 
 astute judgment might probably have con¬ 
 curred with his, had the case in controversy 
 been necessarily determinable upon the tech¬ 
 nicalities of the books, instead of the satisfied 
 conscience and judgment of the House. My 
 convictions, however, are quite as earnest as 
 his can be, that I have brought before you the 
 consideration of a record from which your 
 judgment ought to be satisfied that the election 
 here in contest was not the “ free and fair” one 
 for which we have a constitutional guarantee— 
 and upon which, indeed, depends whatever else 
 is' just, or free, or fair—and that it should not 
 
therefore be recognized and upheld upon tech¬ 
 nicalities which I sought to avoid, but could not. 
 
 THE TECHNICAL QUESTION OF EVIDENCE. 
 
 The reasons assigned by the committee for 
 not even vacating the seat in contest are set 
 forth in the concluding paragraphs of their 
 report as follows : 
 
 “If the class of evidence introduced by the con¬ 
 testant h;id been the only means within his reach to 
 establish the right of the persons rejected to be regis¬ 
 tered and vote as qualified voters, there would be 
 very plausible ground to claim that enough ought 
 to be presumed from it to. at least vacate the elec¬ 
 tion, unless what is proved by the contestant was 
 rebutted by evidence from the other side. But the 
 contestant was not confined to this proof, or evidence 
 of this general nature at all. The provisions of the 
 constitution and laws of Missouri furnished him 
 peculiar facilities to establish his case, if he relied 
 upon proving that legal voters were excluded from 
 registration and voting as qualified voters, inasmuch 
 as the rejected list of the registers and the rejected 
 votes furni'hcd the names of the persons and the 
 candidates for whom they voted. 
 
 “Under these circumstances, the committee con¬ 
 sider they have no right to rely upon such vague and 
 general evidence as has been furnished, or to draw j 
 presumptions and conclusions from it, when it was 
 clearly within the power of the contestant to have 
 established the facts he asks us to presume by clear 
 and exact proof, if such facts exist. 
 
 “The committee consider, also, that in order to 
 unseat a member of this House who has the regular 
 certificate of election, and who is conceded to have 
 received a majority of several hundred votes of the 
 votes received and counted, they should be able 
 to report whose votes were excluded that ought to 
 hAvc been counted; that it would not do lor the 
 committee or for the House to say that out of twenty- 
 five hundred rejected voters, all of whosejiames are 
 unknown, they arc satisfied that enough were legal 
 voters and ought to have been counted to give the 
 contestant a majority.” 
 
 As I would fain escape even the implication 
 of censure for having in any sense trifled with 
 the patience of the House in having brought 
 to its consideration a contest upon evidence 
 less specific than it was reasonably in my power 
 to obtain—and which, it may be added, I bad 
 precedent official reason to believe would be 
 deemed sufficient to at least vacate this elec¬ 
 tion—it is trusted I may be borne with a little 
 longer whilst essaying to vindicate or^exense 
 myself in this regard. Before doing this, how¬ 
 ever. it may be permissible to remark that 
 I was aware, from the commencement, that 
 if “the best evidence” in‘such a case was 
 required of me, it would involve, first, the 
 official comparison of the ballots with the cor¬ 
 responding numbers on the poll-books, and 
 that then, after proving by exemplifications of 
 the registry lists that the persons whose names 
 were found to correspond with the numbers on 
 the ballots which had been cast for me had been 
 duly registered , to have proceeded to prove by 
 competent parol testimony, after proper notice 
 fts to each individual, that each of them (or at 
 least enough of them, one by one, to have 
 changed the result of the election) had been 
 illegally rejected as a voter. 
 
 As to the additional labor and expense of all 
 this, of which the lawyers of the House will be 
 the most competent to form a reasonable prox¬ 
 imate estimate, they will doubtless concur with 
 me that it ought not to be imposed upon a con¬ 
 testant. unless absolutely necessary to the intel¬ 
 ligent and upright decision of his contest—a 
 
 contest which, in analogy to the laws of Mis¬ 
 souri, should be proceeded with and decided 
 “without the form of pleading.” What with 
 the foundation expenses of comparisons, copies 
 and certificates at the clerks’ offices, and the 
 subsequent expenses of summoning and exam¬ 
 ining proper witnesses as to the loyalty of each 
 particular name or person whose vote had been 
 rejected despite his own solemn “ oafb of loy¬ 
 alty,” a very moderate estimate of the mileage 
 and attendance fees of witnesses, day after 
 day, and of the additional lawyers who would 
 have necessarily to be employed to look into 
 and conduct these tedious examinations in con¬ 
 nection with the judges and clerks before whom 
 they were made and reduced to writing, ivould 
 carry the figures to»an aggregate so absolutely 
 enormous as of itself to denote the hardship 
 of the rule suggested by the committee; and 
 when to this consideration there will be added 
 from the testimony that the official partisans 
 of the contestee, whose so-called elections were 
 in the same process of contest with his own, 
 would not permit me to obtain “the best tes¬ 
 timony” in cases where the ballots bad to be 
 resorted to, surely the record 1 have made 
 before you, and which assails and viliates the 
 registration of the district as a whole , may be 
 regarded as at least sufficient to “ vacate the 
 election” which was held under it. 
 
 Turning to that branch of the testimony, it 
 will be seen by the depositions of Livingston, 
 Essig, and Funkhouser, on pages G, 1(3, 13, 
 and 14, that on the 5th of February last (which 
 was as soon under the return law of my State 
 and your notice law as I could) I made formal 
 application to the court of my county to make 
 an order which would enable me to have a 
 recount of the ballots which were cast respect¬ 
 ively for theicontestee and myself, and that 
 my application was officially overruled, in con¬ 
 formity with the construction (no matter how 
 absurd or simulated) which the presiding justice 
 announced as to the law of the State, in contra¬ 
 vention of the design of the law of Congress. 
 
 The testimony will further show t hat 1 there¬ 
 upon publicly requested either of the judges 
 then upon the bench to consent to take my 
 depositions for me, and to issue the necessary 
 subpoena duces tecum to their clerk (under the 
 Federal law) to produce the ballot-boxes, 
 registry lists, and poll-books, from which to be 
 able to fix and depose to the number of rejected 
 voters, as well as the number of accepted 
 voters, which had been cast for the contestee 
 and myself in my own township, where there 
 had been no certificate attached to the poll- 
 books as to whom the rejected votes had been 
 given, and where I bad reason to believe that 1 
 had been most grossly swindled in the cast or 
 epunt of the accepted vote; and that this, too. 
 was unanimously refused me by a bench who 
 claimed to have been elected on the same ticket, 
 and consequently to hold and exercise their 
 offices by the same tenure with the contestee. 
 
 As nearly all the counties in the district were 
 officered dc facto as my own was, and as the 
 judge of the circuit was understood to be 
 absent at the capitol, whereby even the uueer- 
 
tain remedy of mandamus could not be made 
 available to me in time to have my case prop- | 
 erly prepared and presented within the limit , 
 enacted by your law, I had necessarily to yield , 
 to official misrulings and discourtesies which I 
 could not control, and to compromise (so to 
 speak) for such testimony as I could get , and 
 as I could get it. I had given notice to take 
 these depositions before one of those county 
 judges, at the county clerk's office, but the 
 judge refused to serve me, and the clerk refused 
 my attorney even the use of his office. The 
 taking had hence to be properly adjourned to 
 another place, before two justices of the peace, 
 before whom this clerk (who was also elected 
 on the contestee's ticket) was summoned as a 
 witness ; and who, in answer to the question, 
 
 ‘ 1 Why did you not count the ballots of Concord 
 township?” replied: 
 
 “Simply because there was no official order made 
 . by tile county court for me to do so, without which I 
 had no authority to do so under the law.” 
 
 It will be seen by the report of the commit¬ 
 tee (page 5) that although this clerk swears he 
 “was personally acquainted with nearly all the 
 registered voters on the rejected list of that 
 township, and with their politics, and that his 
 .opinion and belief was that they all voted for j 
 me,” they were nevertheless not included in | 
 the number set down to me in the report as j 
 my rejected aggregate in that county. So also 
 of two other townships in La Fayette county, 
 (and it may be added of one of the largest vot¬ 
 ing districts in Platte county,) which demon¬ 
 strates that the committee was at least to that 
 extent mistaken in assuming that the “re- 1 
 jected lists of the registers, and the rejected 
 votes, furnished the names of the candidates 
 for whom they voted.” Whatever may be 
 thought, therefore, of the rule Aey have sug¬ 
 gested as to “names,” when applied to a con- | 
 testant's claim himself to fill the seat of a sit¬ 
 ting member, it is deferentially submitted that ! 
 it would be neither judicious nor equitable to 
 apply it to the vacation of a seat where (as is j 
 relied upon in this case) there is other aud 
 quite sufficient testimony to satisfy the House | 
 that it should be vacated ; and this, notwith¬ 
 standing the mistaken assumption to which 
 you have just listened, that as “the name of 
 every person on the rejected list who offered 
 to vote is preserved, and the ballot he at tempted 
 to cast is marked with his number , it was per¬ 
 fectly easy 1 ' 1 for me to show the names of all my 
 rejected voters by record evidence. 
 
 The distinction in the two cases is so appa¬ 
 rent to my own understanding—it was indeed 
 so reluctantly forced upon my understanding 
 when the ordinary facilities of the law were 
 denied to me at the first practical commence¬ 
 ment of this controversy—that I may be par¬ 
 doned the reiteration, (if such it be,) that in j 
 thus again referring to this portion ot the import j 
 of the committee, it is designed simply to ! 
 demonstrate that, however proper its judgment j 
 may have been in declining to count votes in 
 my favor which I was denied the right of iden¬ 
 tifying by the ballots—and could hence only do 
 so upon testimony of a “class” or character 
 
 less certain or exact—it would seem impermis¬ 
 sibly inequitable and unforecasting to refuse to 
 consider even such testimony (much less the 
 “array” of more specific testimony I have 
 here presented) as a basis upon which to at 
 least vacate this election. 
 
 As a practical condensation of this point it 
 may be stated thus: in my notice to the con¬ 
 testant, my first and fourth charges, upon which 
 it will be seen he took issue with me in his an¬ 
 swer, are stated thus : 
 
 “ 1. I charge that I received a majority of the votes 
 that were legallycastfor a Representative in Congress 
 at the said election, and that they should have been 
 counted for me in the returns from the various town¬ 
 ships and counties of the district instead of being 
 rejected (as they were) and omitted from my count 
 by the election judges and other returning officers. 
 Of the legal ballots thus cast for me, but which were 
 not counted in my favor, about one hundred and 
 seventy were so cast by legal voters in the county of 
 Clinton ; about one hundred in the county of Cald¬ 
 well; about tAvo hundred in the county of Ray : about 
 the same number in the county of Carroll; probably 
 about one hundred in the county of Chariton; about 
 five hundred in the county of Saline, and probably 
 about an equal number in the counties, respectively, 
 of La Fayette, Jackson, Platte, and Clay; and the 
 votes thus cast for me, but rejected and not counted 
 in my favor, were so cast by loyal citizens, who had 
 duly complied with the test-oath provision of the 
 new constitution, but were denied the right of regis¬ 
 tration as qualified voters, their names registered as 
 rejected voters, and their ballots placed in the boxes 
 of rejected voters accordingly. I shall hence demand 
 such a comparison or inspection of the ballots thus 
 cast for me as may be sufficient to verify the allega¬ 
 tion thus made that you were not, and that I was, 
 elected to Congress from this district.” 
 
 “4. I charge that in many townships and counties 
 you were certified to have received more votes than 
 were really cast for you, while a less number than those 
 cast for me were counted and certified in my favor; 
 that in some counties the poll-books of entire town¬ 
 ships which had given me majorities were illegally 
 excluded in the count and certificates of the county 
 clerks, who were your partisans; while in others the 
 poll-books of entire townships which had given you 
 majorities, but which were legally invalid, were in¬ 
 cluded in the count and certificates of clerks alike 
 partisan and unjust; and I shall consequently insist 
 upon a recount of all the ballots cast at said elec¬ 
 tion.” 
 
 This notice was duly served upon the sitting 
 member on the 10th day of January, 1867. 
 On the 5th of February following, which was 
 the first day afterward that a court was held 
 at -which I could “demand such a compari¬ 
 son or inspection of the ballots” as I had 
 notified him I would demand, I did so demand 
 it, and it was refused to me by a court, the 
 judges of whom claimed to have been elected 
 on the same ticket -with the sitting member. 
 If it -would at all strengthen the argument on 
 this point, it might be additionally stated that 
 the partisan county attorney, who subsequently 
 appeared as the contestee’s counsel in the 
 taking of these depositions, was even officiously 
 prominent in pointing out the law upon which 
 this gross misruling was predicated ; but it will 
 suffice to state that as this was the ruling of a 
 court in the preliminary or foundation st&ge 
 of our suit or controversy, he at least accepted 
 that ruling, so far as it forced upon me the 
 class of testimony to which I was thencefor¬ 
 ward compelled to resort at his own peril; and 
 that it would be to reverse every principle of 
 either law or justice to permit him thus and 
 here to “take advantage” of his own .inis- 
 
judgment or “of his own wrong.” If this be 
 not so, or if, in other words, what I can but 
 regard as a more rigid ruling of the commit¬ 
 tee than it would make upon still further 
 reflection upon the record, is nevertheless 
 indorsed as the judgment of the House, I can 
 but naturally suppose it to carry with it a vir¬ 
 tual decision of all future election contests in 
 favor of the party who (for the time being) 
 may have the ear of the county tribunals, who 
 hold the key to the county records! 
 
 The House will of course bear with me in 
 the attempt to render this illustration still 
 more practically apposite and persuasive as to 
 its duty in this case. As it was shown by the 
 returns which were canvassed and sent to the 
 secretary of State that the contestee had a 
 majority against me of 534, I would of course 
 have had to prove, under the committee’s 
 ruling, in order to entitle myself to the seat in 
 controversy, that at least 535 votes which were 
 not counted and returned for me ought to have 
 been’ so counted and so returned. Well, sir, it 
 is shown by the testimony that I essayed my 
 utmost to do this, and I feel that I hazard noth¬ 
 ing in saying I would have done so but for the 
 misrulings of the court, which were practically 
 final as to the “ class” of testimony to which I 
 was driven in further carrying on this contest. 
 To the number of 133 “rejected” votes, and as 
 I had reason to believe to a much larger number 
 of “accepted” votes, the records of the elec¬ 
 tion were absolutely sealed against me; and 
 when to this it is added, that from this illegal 
 and doubtless preconcerted refusal of the offi¬ 
 cial supporters of the contestee, to permit me 
 to exemplify or prove from the ballots of the 
 townships where these rejected votes were 
 divided between him and myself the “ names” 
 of those who voted for me , as contradistin¬ 
 guished from the name or names of those who 
 voted for him, is it not too plain for argument 
 that the contestee himself is responsible for 
 “the class of evidence” to which I was most 
 reluctantly driven in the preparation, present¬ 
 ation, and final submission of this case? 
 
 Will you, nevertheless, permit him to object 
 against me now, that his judges and clerks 
 refused me justice then ? or will you not the 
 rather concede to me, that as I had no rea¬ 
 son to anticipate that the judicial misrulings 
 and other official impediments wmch had been 
 cast in my way thus early in my own county 
 would be in any sense modified to my advan¬ 
 tage in a majority of the remaining counties, I 
 Should be at least excused for having so com¬ 
 promised my way, through judges and clerks 
 who were “dead against me,” as to makesureof 
 what 1 had reason to suppose would be testi¬ 
 mony enough “ to at least vacate the election?” 
 
 THE MOST APPOSITE PRECEDENT IN THE CASE. 
 
 I knew, Mr. Speaker, what I may allude to 
 without even an implication of political or 
 ofiicial disparagement, that my mere political 
 status was not such as to commend me to 
 consideration beyond “the testimony and the 
 law,” but I recurred to what 1 was once a 
 party to be'ere the same committee, and to 
 what 1 shall here recall and copy from their 
 
 ruling in the three Missouri cases which were 
 presented for their consideration four years 
 ago, and which, in their report upon the case 
 of Bruce vs. Loan, is set out in these equit¬ 
 able, direct, and unambiguous words: 
 
 “The contestee, on the hearing,’ took exceptions 
 to some of the allegations contained in the contest¬ 
 ant’s notice as indefinite, and referred to failures on 
 the part of the contestant to comply with some of 
 the provisions of the act passed in 1851 relative to 
 taking testimony in contested-election cases. 
 
 “The majority of the committee, from the view 
 they entertain of this case, deem it unnecessary to 
 discuss in their report the questions presented by the 
 contestee’s exceptions, as they are entirely sati.-fied, 
 from the testimony produced, where both parties 
 appeared and the witnesses were subjected to a rigid 
 cross-examination by the contestee, that the election 
 was not conducted so as to entitle either candidate 
 to a seat in this House.” 
 
 I remembered this perfectly, Mr. Speaker. 
 It may be respectfully repeated that I remem¬ 
 bered it analogously, discriminatingly, and 
 personally; and that although in that, case, and 
 in the analogous ones, to one of which 1 was 
 myself the party contestant, the minority of 
 the committee took a sonj^what different view 
 both as to the “ class” and the sufficiency of 
 the testimony, there was neither of us who re¬ 
 garded the loss of our cases by the subsequent 
 non-concurrence of the House as having re¬ 
 sulted from the character or the 11 class'' of our 
 testimony. In my own case I had testimony 
 from but four counties out of ten, and even that 
 was rebutted and “explained away” by many 
 well-considered depositions on the part of the 
 contestee; whereas in the present case I have 
 the same “class of evidence” (as to the extent 
 of the disfranchisements which were complained 
 of alike in each case) from eight of the ten coun¬ 
 ties of the same district, and without even so 
 much as a line to break the force of so exuber¬ 
 ant an abundance. If, therefore, I have suc¬ 
 ceeded in satisfying the dignity of the House 
 that I did not disregard what 1 had reason to 
 regard as its most apposite precedents, but 
 rather clung to them in the extremity to which 
 1 deemed myself reduced by the misrulings and 
 other wrongs of the official partisans of the 
 contestee, and have also satisfied its consci¬ 
 entious judgment that I have at least proven 
 enough to “vacate” this election, I shall but 
 naturally expect that the resolution which 
 declares the contestee entitled to represent our 
 district will be suoerseded by one which shall 
 reprobate the registration and election as hav¬ 
 ing been alike illegal and unfair, and as a con¬ 
 sequence vacate the seat in controversy. 
 
 THE NEW CONSTITUTION NEVER JUDICIALLY' 
 RECOGNIZED IN MISSOURI. 
 
 A few words more, Mr. Speaker, and from 
 the technical question of “ evidence,” which 
 we have been so long considering, we will pass 
 to the broader and less technical guarantees of 
 the Federal Constitution—to the “ bill of rights 
 for the people of each State,” asa former Chief 
 Justice of the United States denominated those 
 guarantees, and which 1 hope to demonstrate 
 are all-embracing as to the more enlarged con¬ 
 stitutional aspect of this case. In a subor- 
 dinately conservative view of the question it 
 might perhaps be best were it as true in fact 
 
as it doubtless appeared to the official under¬ 
 standing of the committee, that “by every 
 department of the State government of Mis¬ 
 souri” its new “ constitution is regarded and 
 acted upon as the fundamental law of the 
 State.” As, however, of the official bulletin 
 once announcing to the nations, in the face 
 ot sorrowing history, that “order reigned in 
 Warsaw,” so, too, of whatever has been of 
 recognition for this new constitution, by the 
 people of a State so fair and fertile as to con¬ 
 tinue to prosper even under the worst misgov- 
 ernment—it has been but “the order of the 
 despot and the slave.” That constitution, sir, 
 was never so “recognized and acted upon” by 
 the judicial department of our State govern¬ 
 ment so long as we had a constitutional judi¬ 
 ciary : but it was, on the contrary, the crown¬ 
 ing blemish of the dishonoring official history 
 of that instrument, that our supreme judges, 
 who had been elected by the same constitu¬ 
 ency which had limited the convention not to 
 do what they did do, were dragged from the 
 bench to the calaboose in obeisance to the 
 usurping sword of a partisan executive, and 
 that the same sword thrust into their places, in 
 defiance alike of protest and of law, a new 
 bench of so-called judges, through whom alone 
 it came to pass that such a constitution was 
 even “seemingly” recognized by the State 
 judiciary, and that only to be thrown back upon 
 them by the supreme Federal judiciary. When 
 to this it is added that perhaps nine tenths of 
 the revenue of the State is paid by citizens 
 who realize that the Government which col¬ 
 lects it exists alone in “ fraud, and force, and 
 acquiescence,” and that there is reserved to 
 the House I am addressing, “in the reception of 
 Representatives from that State,” the “right 
 to judge of the qualifications and returns ” of 
 those Representatives, there will have been 
 laid at least a sufficient premise for the para¬ 
 graphs which it is but fair to next quote from 
 the report of the committee, as follows: 
 
 “The contestant now claims that this State consti¬ 
 tution, so lar at least as it affects elections of mem¬ 
 bers of Congress, should be held a nullity, and as if 
 it had never been adopted by the people of the State. 
 
 “ This is claimed upon the ground that the conven¬ 
 tion by whom it was framed exceeded their powers 
 given by the legislative act by which the convention 
 was called, and that this was not cured by its subse¬ 
 quent adoption by the people, because, in submitting 
 it to a vote of the people, those only were allowed to 
 vote who could take the oath prescribed in the second 
 article of the constitution, the effect of which was to 
 preclude large num bers from voting who had been 
 previously'allowed to vote. The committee have 
 not deemed themselves at liberty to enter upon this 
 inquiry. 
 
 “It being conceded that by every department of 
 the State government of Missouri this constitution is 
 recognized and acted upon as the fundamental law 
 of the State, and by Congress in the reception of 
 representatives from the State, it is in our judgment 
 too late for this House to inquire as to the regularity 
 of its formation or adoption by the State.” 
 
 To what extent these positions have been 
 anticipated and theoretically replied to, in the 
 previous argument as to the proper construc¬ 
 tion of the clause of the constitution here in 
 controversy, remains, of course, to be denoted 
 in the final judgment of the House; and I hence 
 
 here conclude or close that branch ofthe argu¬ 
 ment to which you have so indulgently listened. 
 
 THE QUESTION OF CONSTITUTIONAL POWER TO IMPOSE 
 THE OATH IN CONTROVERSY. 
 
 Coming, lastly, to that portion of the report 
 of the commit!ee which has relation to the 
 decision of the Supreme Court, in disaffirmance 
 of the power of a State to enact such a “test'" 
 as the one I here complain of, because of 
 the explicit prohibitions contained in the Con¬ 
 stitution of the United States, and the reason¬ 
 ing of which is deemed to be quite as appli¬ 
 cable to the disfranchisement of voters as to 
 the disqualification of priests or preachers, I 
 read from the committee’s report at pages 4 
 and 5, as follows : 
 
 “ The contestant claims that the same application 
 of principles requires the same decision in relation 
 to voters; that the virtual disfranchisement of per¬ 
 sons who were voters under the previous constitution 
 and laws of the State, but who are prevented from 
 voting under the new constitution by reason of their 
 inability to take the oath it requires, can only be 
 regarded as a punishment for the act, which stands 
 in the way of taking the oath, and that the Consti¬ 
 tution of the United States prohibits the infliction 
 of punishment by subsequent legislation. 
 
 “If such disfranchisement must be regarded as 
 established for the purpose of punishing the persons 
 thus deprived of the right of voting it must be ad¬ 
 mitted to come entirely within the reasoning by 
 which the above cited judgment of the court is sup¬ 
 ported.” 
 
 Respectfully requesting that the concession 
 thus recited from the report be kept continu¬ 
 ally uppermost in the eye of the House, I read 
 on as follows: 
 
 “Your committee believe that the provisions of 
 the new constitution of Missouri may be supported, 
 so far as they require this oath of voters, without at 
 all trenching upon the decision of the Supreme Court. 
 
 “Each of the States of the Union have hitherto 
 regulated suffrage within their own limits for them¬ 
 selves, and in such manner as the people of the State 
 deemed most conducive to their own yiterests and 
 welfare. Suffrage is a political right/or privilege 
 which every free community grants to such number 
 and class of persons as it deems Attest to represent 
 and advance tile wants and interests of the whole. 
 No State grants it to all persons, but with such lim¬ 
 itations as the interests of all and the interest of the 
 State require. 
 
 “When once, granted it is not a vested, irrevoca¬ 
 ble right, but is held at the pleasure of the power 
 that gave it, and the State may, by a change of its 
 fundamental law, restrict as well as enlarge it. When, 
 therefore, the State of Missouri, in changing its con¬ 
 stitution. saw fit to declare that the interests of the 
 State and of the people of the State would be pro¬ 
 moted by withholding the right of voting from all 
 persons who could not take the prescribed oaLh, they 
 exercised no greater or higher power than exists in 
 every htate. 
 
 “ The committee do not feel justified in entering 
 into any enlarged discussion of this point of consti¬ 
 tutional law, and therefore merely state the facts 
 and their conclusions thereon.” 
 
 Of so much of the foregoing theory as but 
 correctly assumes that “suffrage,” “when 
 once granted ,” “ is held at the pleasure of thb 
 power, that gave it,” it need, of course, be 
 not further alluded to than as the indirect con¬ 
 currence by the committee in the impregnabil¬ 
 ity of the proposition whereon I based the argu¬ 
 ment, awhile ago, that the unratified disfran¬ 
 chisements here in controversy had, in fact , 
 no other sanctions than those of “fraud and 
 force.” As, however, “the*committee have 
 not deemed themselves at liberty to enter 
 
upon” this proposition in the practical sense 
 in which 1 have had the honor to present it, I | 
 shall make no further allusion to the proposition j 
 upon which they dismiss it than to respectfully 
 inquire, .in the language of the patriot poet, 
 
 “ What constitutes a State ?” 
 
 and denying, as he would have done, that the 
 infamy by which alone 1 have been constrained : 
 to appeal to you as a contestant, instead of 
 having been certified to you as a peer, was ever 
 legitimately enacted by the 
 
 “ High minded men” * * * who "constitute the State,” 
 
 pass next to the issue upon which the com¬ 
 mittee have entered, and which they have de¬ 
 cided against me. As they but fairly and frankly 
 admit that “if such disfranchisements must be 
 regarded as established for the purpose o {pun¬ 
 ishing the persons thus deprived of the right of 
 voting,” “they comeentirely within the reason¬ 
 ing” of the court in the priests case; and as per¬ 
 haps no one will deny that a case ‘ ‘ entirely within 
 the reasoning' 1 ’ of an adjudicated case mustulti- 
 mately be similarly adjudicated , there would 
 seem to be devolved upon me the duty alone 
 of so combining and reciting the opinion of the 
 court as to demonstrate that it did regard such 
 disfranchisements as 1 here complain of as 
 “ punishment”—and that, being for that reason 
 within the inhibitions upon the sovereignty of 
 the States, to which they each and all assented 
 by coming into the Union, the case may be sub¬ 
 stantially regarded as res adjudicati. 
 
 As substantially the same points which are 
 made by the committee in this case seem to 
 have been made by the counsel for Missouri 
 in that case, the answer to them may be read 
 from the opinion in question, as follows : 
 
 “ Wc admit the propositions of the counsel of Mis¬ 
 souri, that the States which existed previous to the 
 adoption of the F ederal Constitution possessed origin¬ 
 ally all the attributes of sovereignty ; that they still 
 retain those attributes, except as they have been sur¬ 
 rendered by the formation of the Constitution and 
 the amendments thereto: that the new States upon 
 their admission into theUnion became invested with 
 equal rights, and were thereafter subject only to sim¬ 
 ilar restrictions, and that among the rights reserved 
 to the States is the right of each State to determine 
 the qualifications for office, and the conditions upon 
 which its citizens may exercise their various callings 
 and pursuits within its jurisdiction. 
 
 “ These are general propositions and involve prin¬ 
 ciples of the highest moment. But it by no means 
 follows that, under the form of creating a qualifica¬ 
 tion or attaching a condition, the States can in effect 
 inflict a punishment for a past act which was not 
 punishable at the time it was committed. The ques¬ 
 tion is not as to the existence of the power of the 
 State.over matters of internal police, but whether 
 that power has been made in the present case an 
 instrument for the infliction of punishment against 
 the inhibition of the Constitution.” 
 
 A little further on the court continues its 
 reasoning as follows: 
 
 “The disabilities created by the constitution of 
 Missouri must be regarded as penalties—they con- j 
 stitute punishment. Wo do not agree with the 
 counsel of Missouri that ‘to punish one is to deprive 
 him of life, liberty, and property, and that to take 
 from him anything less than these is no punishment j 
 at all.’ The learned counsel does not use these j 
 terms—life, liberty, and property—as comprehend- ! 
 ;ng every right known to the law. He docs not . 
 include under liberty freedom from outrage on the j 
 feelings as well as restraints on the person. lie does j 
 
 not include under property those estates which one 
 may acquire in professions, though they are often 
 the source of the highest emoluments and honors. 
 The deprivation of any rights, civil or political, pre¬ 
 viously enjoyed, may be punishment, the circum¬ 
 stances attending and the causes of the deprivation 
 determining this fact.” 
 
 And yet a little further on they continue to 
 reason as follows : 
 
 ‘‘In France, deprivation or suspension ofeivil rights, 
 or of some of them, and among these of the right of 
 voting, of eligibility to office, of taking part in family 
 councils, of being guardian or trustee, of bearing 
 arms, and of teaching or being employed in a school 
 or seminary of learning, are punishments prescribed 
 by her code. The theory upon which our political 
 institutions rest is, that all men havccertain inalien¬ 
 able rights—that among these are life, liberty, and 
 the pursuit of happiness; and that in the pursuit of 
 happiness all avocations, all honors, all positions are 
 alike open to every one, and that in the protection 
 of these rights all arc equal before the law. Any 
 deprivation or suspension of any of these rights for 
 past conduct is punishment, and can be in no other¬ 
 wise defined. Punishment not being, therefore, re¬ 
 stricted, as contended by counsel, to the deprivation 
 of life, liberty, or property, but also embracing de¬ 
 privation or suspension of political or civil rights, 
 and, tho disabilities prescribed by the provisions of 
 the Missouri constitution being in effect punishment, 
 we proceed to consider whether there is any inhibi¬ 
 tion in the Constitution of the United States against 
 their enforcement.” 
 
 Can it be possible, Mr. Speaker, that the 
 preachers case and the voters case were disso¬ 
 ciated in the mind of the court when rendering 
 this long-matured opinion, or that they forebore 
 on that occasion to redress the wrongs I here 
 complain of by their judgment , as well as 
 their “reasoning,” except for the judicial rea¬ 
 son that the voter was not (in legal parlance) 
 a party to the record there, whereas he is the 
 only party to it here? Perhaps I ought to add, 
 that although the oath was the same in the voters 
 case as in that of the priest and other parties 
 enumerated in the general reasoning of the 
 court, he was excluded from the franchise 
 under a different section of the Constitution 
 from the one under which the priest was for¬ 
 bidden to follow his previous calling—and this, 
 to the professional listener, will constitute a 
 sufficiently satisfactory explanation why the 
 voters, who were disfranchised under the third 
 section of the Constitution, were not more 
 specifically alluded to in the reasoning of the 
 court upon the ninth section. 
 
 Must they not have been, however, indisso¬ 
 lubly associated in the mind of the court, when 
 speaking of the “deprivation of the right of 
 voting” in France as a “punishment pre¬ 
 scribed by her code, just as it will doubtless be 
 shown, in the voting case now before the court 
 from Missouri, th-.t it is punishable by the 
 laws of that State? and when correcting the 
 counsel for Missouri for not having used the 
 terms life, liberty, and property, as compre¬ 
 hending “every right known to the law,” 
 including “freedom from outrage on the 
 feelings as well as restraints on the person?” 
 and when concluding one of the quotations 
 I have made from their reasoning, with words 
 which will constitute in all the future a fund¬ 
 amental maxim of our jurisprudence, to wit, 
 that “,the deprivation of any rights, civil or 
 political, previously enjoyed , may [as in this 
 case] he punishment.” Expecting to demon- 
 
strate presently that, in a case analogous, the 
 highest historical authority is in but natu¬ 
 ral accord with the highest judicial authority, 
 not only that the deprivation of the political 
 rights in contest here “ may be” punishment, 
 but that they are punishments of the most 
 “ degrading” character, when enacted by a 
 “retrospective penal law,” we will next draw 
 upon the opinion of the court as to the scope 
 and severity of this oath, as follows: 
 
 “The oath thus required is for its severity with¬ 
 out anv precedent that we can discover. *In the first 
 place it is retrospective; it embraces all the past 
 from this day ; and if taken years hence it will also 
 cover all the intervening period. In its retrospective 
 feature we believe it is peculiar to this country. In 
 England and France there have been test-oaths, but 
 they were always limited to an affirmation of present 
 belief or present disposition toward the Government, 
 and were never exacted with reference to particular 
 instances of past misonduct. In the second place, 
 the oath is directed not merely against overt and vis¬ 
 ible acts of hostility to the Government, but it is 
 intended to reach words, desires, and sympathies also. 
 And, in the third place, it allows no distinction be¬ 
 tween acts springing from malignant enmity and acts 
 which may have been prompted by charity or affec¬ 
 tion or relationship.” 
 
 It is trusted no member of the House will 
 fail to recall in this connection the practical 
 construction or administration of this oath by 
 the registerial partisans of the contestee, Avho 
 rejected twenty-eight hundred and thirty-five 
 of my supporters who had taken it in the sense, 
 doubtless, that they had not disloyally sym¬ 
 pathized with the southern people, and who 
 were rejected in the probable proportion of 
 eleven twelfths of the whole simply because 
 their names were copied and certified from the 
 military list of “sympathizers” to which so 
 many were driven or forced in 1862. But I 
 am possibly bordering on a digression from the 
 issue now under discussion, and will hence 
 return to the opinion of the court for the rea¬ 
 sons upon which they decided that the require- 
 mentsof the Missouri constitution were, in this 
 regard, inhibited by the Constitution of the 
 United States. The court says : 
 
 “The counsel for Missouri closed his argument in 
 this case by presenting astriking picture of thestrug- 
 gle for ascendency in that State during the recent 
 rebellion between the friends and the enemies of the 
 Union, and of the fierce passions which that struggle 
 aroused. It was in the midst of the struggle that the 
 present constitution was framed, although it was not 
 adopted by the people until the war had closed. It 
 would have been strange, therefore, bad it not ex¬ 
 hibited in its provisions some traces of the excite¬ 
 ment amid which the convention held its delibera¬ 
 tions.” 
 
 “It was against the excited action of the States 
 under such influences as these that the framers of 
 the Federal Constitution intended to guard. In 
 Fletcher vv. Peck, (6 Cranch, 137,) Mr. Chief Justice 
 Marshall, speaking of such action, uses this lan¬ 
 guage: ‘ Whatever respect might have been felt for 
 the State sovereignties it is not to be disguised that 
 the framers of the Constitution viewed with some 
 apprehension the violent acts which might grow out 
 of the feelings of the moment; and that the people 
 of the United States, in adopting that instrument, 
 have manifested a determination to shield them¬ 
 selves and their property from the effects of those 
 sudden and strong passions to which men are ex¬ 
 posed. The restrictions on the legislative power of 
 the States are obviously founded in this sentiment; 
 and the Constitution of the United States contains 
 what may be deemed a bill of rights for the people 
 of each State.’ 
 
 “‘ No State shall pass any bill of attainder, ex post 
 
 facto law, or law impairing the obligation of con¬ 
 tracts.’” 
 
 It was to this prohibition—this “bill of 
 rights for the people of each State ”—that the 
 remainder of the reasoning of - the court was 
 directed ; and I know not how better to con¬ 
 clude the extracts to which my time and 
 strength alike restrict me, than by reading from 
 the examples they have hypothesized in their 
 argument, a prescient and all-embracing 
 illustration of the propriety and sanctity of 
 these constitutional inhibitions, as follows: 
 
 “Take still another case: suppose that in the prog¬ 
 ress of events persons now in tho minority in the 
 State should obtain the ascendency and secure the 
 control of the government; nothing could prevent, 
 if this constitutional prohibition can be evaded, the 
 enactment of a provision requiring every person, as 
 a condition of holding any position of honor or trust 
 or of pursuing any avocation in the State, to take an 
 oath that he had never advocated or advised or sup¬ 
 ported the imposition of the present expurgatory 
 oath. Under this form of legislation the most fla¬ 
 grant invasion of private rights, in periods of excite¬ 
 ment, may be enapted, and individuals and even 
 whole classes may be deprived of political and civil 
 rights.” 
 
 Deeming it unnecessary to read the concur¬ 
 rent deprecatory reasoning of Judge Holmes, 
 who recently delivered the opinion of the de 
 facto court in Missouri, in an analogous case 
 at St. Louis, but nevertheless congratulating 
 the House and the country upon the ultimate 
 acquiescence thus significantly foreshadowed, 
 the considerations I have deferentially submit¬ 
 ted for at least “vacating” the seat in contro¬ 
 versy will be concluded by the historical refer¬ 
 ence to which allusion has been made, and 
 which I but substantially reproduce from the 
 argument of a professional friend in the Blair 
 case at St. Louis, now pending before the 
 Supreme Court here, as follows: 
 
 During the reign of Charles II proceedings 
 were set on foot to forfeit the charters of most 
 of the principal cities and towns of England. 
 The privileges and immunities enjoyed by 
 those who were freemen of a city or borough 
 were a great obstacle to the designs enter¬ 
 tained at that period by the court party. It 
 was felt that an immense advantage would be 
 gained if the charters of the municipalities 
 could be forfeited. With a view to this the 
 Crown, by virtue of the power then held by it 
 of displacing any judge at pleasure and ap¬ 
 pointing his successor, purged the bench of 
 every judge who from his learning and integ¬ 
 rity was supposed not to be likely to prove a 
 tool of arbitrary power; and then writs of quo 
 warranto were issued against the several, cor¬ 
 porations. But in England, in the worst of 
 times, there has been some reverence for law, 
 and some hesitation to commit open outrages 
 upon it. So soon as the actions were begun 
 the creatures of the Crown began to approach 
 the municipal magistrates, and advise them to 
 surrender their charters without a trial to the 
 Crown, trusting to the clemency of the king 
 to grant them new charters^ not so favorable, 
 indeed, as the old, but far better than could be 
 looked for if formal judgment of ouster were 
 passed against them. This was the form of 
 the solicitation. Both the monarch and his 
 
supple instruments, the judges, had a whole¬ 
 some dread of the possible consequences that 
 might ensue to them both in case of a popular 
 reaction such as had led to the Long Parlia¬ 
 ment, and they had no such disposition to 
 push matters to extremities if it was possible 
 to avoid that necessity by a compromise. Most 
 of the corporations were persuaded to surren¬ 
 der their charters for fear of encountering still 
 worse evils. Of course there were on this sub¬ 
 ject in each borough two parties ; one of them 
 in favor of surrendering the charters (these 
 were mostly friends of the prerogative, or 
 Tories,) and the other opposed to this policy, 
 mainly composed of Whigs. These things 
 were done between 1G83 and 1G86. 
 
 In 1688 occurred the revolution that drove 
 the Stuart dynasty from the throne of Great 
 Britain. The first Parliament which assembled 
 under the new monarch betook itself to the task 
 of redressing some of the more heinous wrongs 
 of the preceding reigns. In this Parliament 
 the Whigs had a majority. In an evil hour 
 some of that party bethought themselves of a 
 scheme, the accomplishment of which would, 
 they thought, secure to the Whigs a permanent 
 tenure of political power. They resolved to 
 seize the occasion of the corporation bill for 
 effecting this object. The narrative of the 
 heated party strife of the seventeenth century, 
 with the comment of the historian alluded to, 
 may be read in the third volume of Macaulay’s 
 History of England, at pages 398-401, as fol¬ 
 lows: 
 
 “A bill for restoring the rights of those corpora¬ 
 tions which,duringthe reign of Charles Hand James 
 II, had surrendered their charter to the Crown, had 
 been brought into the House of Commons, read twice, 
 and referred to a committee of which Somers was 
 chairman. lie reported the bill to the House on Jan¬ 
 uary 2d, 1090. Most of the Tory members were then 
 absent, keeping Christmas at their homes. The 
 Whigs, being in the secret, were present in great 
 numbers. The moment the bill was read, Sachove- 
 rell, who had been an energetic exclusionist in the 
 time of Charles II, moved a clause that every muni¬ 
 cipal functionary who had in any manner been a 
 party to surrendering the charter of any borough to 
 the Crown, should be for seven years incapable of 
 holding any office in that borough. The charter of 
 nearly every corporate town in England had been 
 remodeled during the ‘ hot fit of loyalty’ which fol¬ 
 lowed the detection of the Rye House plot, and in 
 almost every borough the voice of the Tories had 
 boon for surrendering the charter and trusting to the 
 paternal care of the king.” The effect of Sache- 
 verell’s clause was thus to make some thousands of 
 the most opulent and highly-considered men of the 
 kingdom incapable, for seven years, of bearing any 
 part in the government of the places where they re¬ 
 sided, and to secure to the Whig party for seven years 
 an overwhelming influence in borough elections. 
 
 “The minority exclaimed against the gross injus¬ 
 tice of passing rapidly and by surprise, at a season 
 when London was empty, a law which retrospectively 
 inflicted a severe penalty on many hundred respecta¬ 
 ble gentlemen; a law which would call forth the 
 strongest passions in every town from Berwick to St. 
 Ives ; a law which must have a serious effect on the 
 composition of the House itself. Common decency 
 required at least an adjournment. An adjournment 
 was moved, but the motion was rejected by 127 to 89. 
 The question was then put that Sacheverell’s clause 
 should stand as part of the bill, and was carried by 
 133 to 68. Sir Robert Howard immediately moved 
 that every person who, being under SachcvereH’s 
 clause disqualified for municipal office, should pre¬ 
 sume to take any such office should forfeit £500 and 
 be for life incapable of holding any public employ¬ 
 ment whatever. The Tories did not venture to 
 
 divide.” * * * * " It was immediately 
 
 resolved that the bill, enlarged by Sacheverell’s and 
 Howard’s clauses, should be engrossed. The most 
 vehement Whigs were bent on finally passing it within 
 forty-eight hours. The Lords, indeed, were not likely 
 to regard it very favorably. But it would seem there 
 ( wcre some desperate men prepared to withhold the 
 supplies and thus to place the Upper House under 
 the necessity of either consenting to a vast proscrip¬ 
 tion of the Tories or refusing to the Government the 
 means of carrying on the war. There were Whigs, 
 however, honestenough to wish that fair playshould 
 be given to the hostile party, and prudent enough to 
 know that an advantage obtained by violence and 
 cunning could not be permanent. These men insisted 
 that at least a week should be suffered lo elapse 
 before the third reading, and carried their point. 
 Their less scrupulous associates complained bitterly 
 that the good cause was betrayed.” 
 
 * * “As a postponement of a few days appeared, 
 
 however, to bo inevitable, those who had intended 
 to gain the day. by stealing a march now disclaimed 
 that intention.” * * * * “The mails 
 
 had carried out along all the high roads the 
 tidings that on tho 2d of January the Commons 
 had agreed to a retrospective penal law against 
 the whole Tory party, and that on the tenth that 
 law would be considered for the last time. The 
 whole kingdom was moved from Northumberland to 
 Cornwall.” * * * * “Assuredly, no rea¬ 
 
 sonable man of any party will deny that the Tories, 
 in surrendering to the Crown all the municipal fran¬ 
 chises of the realm, and with these franchises the 
 power of altering the constitution of the House of 
 Commons, committed a great fault. But in that fault 
 the nation itself had been an accomplice. If the 
 mayors and aldermen whom it was now proposed to 
 punish had, when the tide of loyal enthusiasm ran 
 high, sturdily refused to comply with the wish of 
 their sovereign, they would have been pointed out 
 in the street as Roundhead knaves, preached at by 
 rector, lampooned in ballads, and probably burned 
 in effigy before their own doors. That a community 
 should be hurried into errors, alternately by fear of 
 tyranny and by fear of anarchy, is doubtless a great 
 evil; but the remedy for that evil is not to punish 
 for such errors some persons who have merely erred 
 with the rest and who have since repented with tho 
 rest. Nor ought it to bo forgotten that the offenders 
 against whom iSachevcrell’s clause was directed had 
 in 1688 made large atonement for the misconduct of 
 which they had been guilty in 1683. They had as a 
 class stood up firmly against the dispensing power, 
 and most of them had actually been turned out of 
 their municipal offices by James for refusing to sup¬ 
 port his policy. It is not strange, therefore, that the 
 attempt to inflict on all these men. without excep¬ 
 tion, a degrading punishment, should have raised 
 such a storm of public indignation as many Whig 
 members of Parliament were unable to face.” 
 
 Need more be added, Mr. Speaker, whether 
 in indignant reprehension of the past, or 
 respectful premonition of the future? The 
 historian of England—the Whig who quitted 
 her Parliament to write her history—has want- 
 ten of the measure proposed by his party, but 
 • not finally carried, what the court of last resort 
 has substantially written of the enactment here 
 in controversy—that it“ retrospectively inflicts 
 a severe penalty,” that it was (or would have 
 been) “a retrospective penal law,” and that 
 it was an attempt “to inflict upon” a certain 
 class of people, without exception, (there as 
 here,) “a degrading punishment .” 
 
 Recurring hence to the concession of the 
 committee, that “if such disfranchisements 
 must be regarded as punishment,” this case is 
 but necessarily within the reasoning of the 
 court in the opinion so often quoted from, may 
 ! I not respectfully demand your “ judgment ” 
 
 I accordingly ? Not only upon the concurrence 
 of the highest judicial and historic authority, 
 whereby it has been shown that these ex post 
 facto disfranchisements are to he regarded as 
 
“ punishments,” but upon that other and like 
 fundamental concession of the committee, that 
 “ suffrage” “once granted” “is held at the 
 pleasure of the power that gave it ,” is that 
 “judgment” deferentially anticipated in the 
 decision you are now soon to render. And 
 what has the contestee opposed to all this, or 
 what can he oppose why your judgment should 
 not be thus rendered? Is it too much to suggest 
 that it will be simply such sinuous and sinister 
 prejudices and such implacable resentments as 
 have been fostered and fulminated against the 
 “thousands” who once mistook their true loy¬ 
 alty, as every member of the Legislature did, 
 and the most earnest of whom, in the language 
 of Macaulay, having “merely erred with the 
 rest and since repented with the rest,” should 
 but equitably and naturally be forgiven with 
 the rest. Concerning such citizens 1 have here 
 a deposition from one of the counties which 
 may safely enough be relied upon as denoting 
 at least the present and future loyalty of those 
 who either “ could not or would not take the 
 retrospective part” of this unconstitutional 
 “test-oath,” and with the reading of the most 
 pertinent portions of which I shall be prepared 
 to submit to the decision of the House the case 
 of a long wronged and an outraged constitu¬ 
 ency. At pages 42 and 43 Robert P. C. Wil¬ 
 son swears as follows: 
 
 “ I am a lawyer by profession and have resided in 
 Platte county. Missouri, for a number of years, in 
 fact was partially raised here; am well acquainted 
 with the people of the county generally, and was so 
 acquainted at the general election of 1866; was reg¬ 
 istered at said election as a qualified voter. Believ¬ 
 ing that a portion of what was called the Missouri 
 test-oath, and which oath was administered to voters 
 at the general election indicated, was unconstitu¬ 
 tional, I advised the people of the fact that at Platte 
 City I would receive and preserve the ballots of all 
 persons otherwise qualified, but who could or would 
 not take the retrospective part of said oath and 
 would take the prospective portion of the same. On 
 the election day, the 6th of November, 1866, I was 
 present at the polls and did receive and preserve the 
 ballots of about one hundred—I think it was exactly 
 one hundred ballots—of the kind indicated above. 
 Before receiving a ballot of any person—in fact, all 
 the persons who deposited their ballots with me at 
 the Platte City polls went before a justice of the 
 peace of the county and took and subscribed the 
 prospective part of said test-oath, stamping and can¬ 
 celing the stamp on same; then, with the oath 
 annexed to their tickets, presented themselves to the 
 judges of election and demanded the privilege of 
 voting, which privilege was uniformly denied them. 
 The ballots of all such were preserved by me, and 
 I believe without exception were in favor of Judge 
 Birch for Congress. I think all these persons were 
 residents of the election district in which they 
 offered to vote, and had it not been for the enforce¬ 
 ment of the ex post facto part of said oath I believe 
 they each and all would have been entitled to vote 
 and would have been duly registered,” &c. * * 
 
 * * ” The votes, or rather the one hundred bal¬ 
 
 lots preserved by me and mentioned above, were not 
 included in any official count made.” 
 
 They have hence been included in no nu¬ 
 merical aggregate, either of the committee or 
 rnyself, but are you prepared to decide against 
 tiie oath of these men, and the prospective alle¬ 
 giance they pledge to the Government, that 
 they, too, are not “loyal citizens,” for whom 
 
 it was the duty of the convention, under the 
 limitation of the organic act of their exist?* 
 ence, and in view of the inhibitions of the Fed¬ 
 eral Constitution as to any other oath than the 
 one they took , to “preserve in purity the elective 
 franchise?” And what message shall I send 
 or carry to this class of men, the conduct of 
 many of whom, to again repeat the language 
 of the court, was “not even blameworthy,” 
 and who. upon the correlatives of “allegiance 
 and protection,” so ably enforced during the 
 morning by the gentleman from Indiana, [Mr. 
 Orth,] are but naturally entitled to “the 
 protection of the ballot?” Shall I message 
 them by telegram, to-night, that the legisla¬ 
 tive department of their Government peace¬ 
 fully and “loyally” acquiesces in the “rea¬ 
 soning” of the judicial department? or must 
 it be that I shall have to carry to their fire¬ 
 sides and their public assemblies the ungenial 
 and unwelcome foreshadowing, that upon such 
 a popular upheaving or revolution in this 
 country as reduced the British Whigs to a 
 minority in the Parliament which succeeded 
 their but menaced disfranchisements, can they 
 alone rely for their disenthrallment from an 
 unconstitutional and “a degrading punish¬ 
 ment?” Let it suffice to add, sir, if aught of 
 human reason or of the most eminent author¬ 
 ities can suffice, that having brought to my aid 
 the concurrences of history and of law upon 
 the point wherein it is my misfortune to 
 disagree with so respectable and respected a 
 tribunal as the Committee of Elections, the 
 decision between us must but naturally go to 
 the House, and anon to the country from whom 
 we all derive whatever of legitimate authority 
 we may exercise here. To that House, which 
 has so long and so patiently listened to rpe, as 
 its committee had previously done, there re¬ 
 mains to me, in conclusion, but the agreeable 
 duty of committing the case of my constituents 
 to their joint and final decision; and of return¬ 
 ing to its members, and to you, Mr. Speaker, 
 my most appreciative acknowledgments, and 
 my most sincere and respectful thanks. 
 
 Note by Mr. B., January 10.—I regret tfc 
 find that there will not be room for the extracts 
 I had brought together from the remarks of 
 Mr. Kerr, of Indiana, in respect to the “great, 
 if not insurmountable,” impediments which 
 were thrown in the way of obtaining such testi¬ 
 mony as the committee refer to ; and that I am 
 limited to the closing sentence of the speech 
 of that gentleman, as follows: 
 
 ‘‘I agree with the learned gentleman from Penn¬ 
 sylvania, [Mr. 'Woodward,] for whose judgment I 
 entertain profound respect, that that exercise of 
 power on the part of that constitutional convention 
 was. utterly unauthorized, was illegal, was unconsti¬ 
 tutional. In my judgment it was most infamous, and 
 in reference to the institutions of that State itwas 
 revolutionary. It was adishonorwhich throws shame 
 upon the State of Missouri to this day, and will con¬ 
 tinue to do so untii that infamous provision in that 
 constitution is expunged, as it will be, as certain as 
 God rules, in the early future of this country.” 
 
 Printed at the Congressional Globe Office.