Answer. I was occasionally in attendance at the legislature, but was present at no caucus of any kind.

Question. Was it not fully understood, so far as your knowledge extends, by the republican members of said legislature, and especially of the senate, that they were to resist and prevent an election of senators at that session?

Answer. I have no knowledge of what was the understanding on that subject.

Question. You speak of an election of senators being prevented by the casting vote of Jesse D. Bright in the session of 1844 and 1845. State what party had prevailed in the State at the election next preceding said session for President, and on the popular vote generally? Answer. Mr. Polk carried the State that year for President.

Re-examined by protestants.

Question. Have you ever known a joint convention assembled to count the vote for governor and lieutenant governor of the State adjourned over for the transaction of any other business?

Answer. I never have.

WM. SHEETS.

The further taking of depositions postponed until Saturday morning, 8th of May, 1858, at 8 o'clock, at which time Charles D. Murray and Cravens, the contestors, and Voorhees, as the friend of Messrs. Bright and Fitch, appeared at the senate chamber, when Oliver H. Smith presented the following, as his answers to the questions therein propounded to him.

Oliver H. Smith, being duly affirmed, in answer to the following questions, says:

Question 1. State your name and residence, and how long you have resided in the State of Indiana ?

Answer. My name is Oliver H. Smith; my residence is the city of Indianapolis; I have resided in the State of Indiana since the year 1817.

Question 2. State whether you have been acquainted with the custom and usage of electing senators of the United States by the legislature of Indiana; if so, what has been the custom as to the agreement of the two houses to go into the election, and in what manner have they agreed, and how old is the custom ?

Answer. I have been acquainted with the custom of electing United States senators in Indiana since the first election of William Hendricks, in 1825; the custom has been, at all the elections of senators since that election, inclusive, up to 1857, to elect by joint vote of the senate and house of representatives, met in joint convention in pursuance of a joint resolution, or a resolution of one body, sitting as such, with a concurrence of the other body, sitting as such. Such, I understand, has been the custom from the organization of the State government and the first senatorial election, up to the year 1857, without an exception. The act of 1831 expressly provides "that,

when the term of any senator in Congress is about to expire, it shall be the duty of the general assembly, at their session last preceding the term of service of such senator, to elect by joint ballot of both houses, on such day and at such place as they may agree upon, a suitable person to serve as a senator from this State to the Congress of the United States for the next succeeding six years." This act embodies the custom and usage on the subject, both before its passage and since it has been left out of our recent revisions.

Question 3. State your means of knowing the custom of the legislature aforesaid.

Answer. I was a member of the legislature of the State in the year 1822-'23; have been something of a politician in my day; was present at every senatorial election from 1825 till 1837, and every senatorial election from that time to 1857, except the election of Mr. Hannegan over myself and General Howard in 1842, when I was at Washington city. I have been a candidate for United States senator three times; once elected and twice defeated-once by General Tipton and once by Mr. Hannegan; during all which time I never knew or heard of any other custom or usage of electing a United States senator but by a joint vote of the two bodies, the senate and house of representatives, met in joint convention, in pusuance of a concurring resolution, passed separately, fixing the time and place. I am satisfied that this has been the usage, custom, and understanding of all parties, and has been conformed to, without objection or deviation, up to 1857. I state this the more confidently from the fact that on one or more occasions, when one of the political parties has had a majority in one house and the opposite party would have a majority on joint ballot, the house having the majority would refuse to pass the resolution of the other house to go into the election, and thereby postpone the election to the next legislature; as was the case when Lieutenant Governor Jesse D. Bright repeatedly gave the casting vote, laying a resolution to go into the election on the table, when the opposite party had the majority on joint ballot.

Question 4. State whether you have known of an election of senators of the United States in Indiana without the concurrence of both houses of the legislature in advance, by resolution, to go into the election ?

Answer. I have never known or heard of such an election, or an attempt to elect, in such a manner, except in the case of Messrs. Bright and Fitch, in 1857.

Question 5. You have stated that Jesse D Bright, when acting as president of the Indiana senate, gave the casting vote against a resoÎution to go into the election of United States senator. Please state how the legislature were divided at that time, and the consequences of his refusal to go into the election, and whether he said anything to you on that subject?

Answer. At the time I referred to, the senate of the State was, politically, equally divided. The house of representatives was largely antidemocratic, giving a large majority on joint ballot against the democratic party. The house passed resolutions fixing the time of the election, by joint bollot, of a United States senator. The senate was a

tie, and Mr. Bright, the lieutenant governor and president of the senate, repeatedly voted to lay the resolutions on the table, declaring, as I understood him, without any concealment, that there should be no United States senator elected at that session; the result was, that the election was postponed until the next session of the legislature, when it took place by joint vote of the two houses, met in convention, jointly, in pursuance of a concurring resolution of both houses, and Mr. Bright was elected United States senator at that election.

Question 6. Have you ever known a joint convention of the legislature, assembled to count the vote of the governor and lieutenant governor of this State, adjourned over for the transaction of any other business?

Answer. Never, until the session of 1857.

O. H. SMITH.

Charles D. Murray, being called by D. W. Voorhees, who appears as the friend of Messrs. Bright and Fitch, and duly sworn, on his oath deposes as follows:

Question, by Voorhees. Were you a member of the Indiana senate in the year 1857; and, if so, from what counties, and what were your politics at that, and also at the present time?

Answer. I was a member of the senate of Indiana at the time indicated, and represented the counties of Cass, Howard, and Pulaski ; was a republican then, am now, and purpose to remain so.

Question, by same. State whether it was not definitely agreed and determined upon, by and between the republican members of the Indiana senate, and the republicans generally, then at Indianapolis, that no election of senators in Congress should take place at the session of 1857; and whether, or not, such determination was not made in caucus or convention of republican members?

.

Answer. In answer to the above interrogatory, I say that no such agreement or understanding was definitely agreed on at any caucus or convention at which I attended, and I think I attended and took a prominent part in all of them.

Question, by same. Was it not so understood, without any reference to caucus or convention, among members, and was it not especially so understood by yourself?

Answer. There was no such understanding among the republican members that I know. There were some of the members who expressed themselves as against suffering the democrats to elect senators, as they had served us at the previous session, when the democrats refused to elect when we had the majority. I had no definite understanding myself as to whether there would be an election.

Question, by same. Did not the republicans, as a body, in the senate, do all in their power to prevent an election of United States senators? Answer. We did all in our power to prevent an illegal and unconstitutional election of senators. There was no proposition made, that I now remember, by resolution in the senate to go into the election in the manner sanctioned by the past usage and custom of the State, unless towards the close of the session, by Mr. McLain, of Vigo.

Question, by same. Did not the house, by resolution, invite the

senate to go into an election of United States senators, and did not you and your republican colleagues vote against concurring?

Answer. I have no recollection of any message from the house covering any resolution fixing a time for electing United States

senators.

Question, by same. Why did you and your republican colleagues vote to place Lewis Burke, a member of your own body, in the chair of the presiding officer, thereby seeking and succeeding, for the time being, to supplant Gov. Willard?

Answer. In answer to the above interrogatory, I say that my action, and I think that of my republican colleagues, was based upon the fact that we held that the lieutenant governor is not the president of the senate until the senate is organized-that is, with a constitutional quorum sworn in; that until such organization he has no power as president. Another reason for our action was, that it was understood and believed that it had been agreed in democratic caucus that Willard would exclude the republican members whose seats had been contested, organize the senate without them, and thus, with a majority, elect the officers of the senate, and perhaps United States senators. Two of our republican senators, Messrs. Bobbs and Rice, had regular certificates of election, and the other, Dr. Cooper, had no regular certificate of election, but a certified copy of the return of the board of commissioners, showing him elected by one hundred majority; but the clerk had refused to give him a certificate of election, because his seat was contested, and we believed that these contests had been entered for the purpose of thus excluding them to give them that unfair advantage.

In addition to what I have said in the foregoing part of this answer as to the organization of the senate, I state that, up to the last four years, the two houses had been organized by law by the secretary and auditor of state, but in the revision of 1852 the law was omitted, and there was no law upon the subject.

Question, by same. Were not you and the republicans generally determined and prepared, by force and violence if necessary, to carry out the organization under Lewis Burke; and was not James H. Lane, of Kansas, present in the lobby, and also inside of the bar of the senate, advising and urging the course pursued by the republican

members?

Answer. As to any force or violence to be used, we had no agreement or understanding about it. Our understanding was, that we would call a senator holding over to the chair, and organize by swearing in all the newly elected senators, both democrats and republicans, and then let Willard preside, as he had a right to do.

I do not know of any member or other person who had prepared himself with arms for the purpose of using them. We attained our object, a full organization of the senate. General Lane was, I believe, in the senate chamber, in the space, to the right of the president, for visitors. I do not know that he was armed; the only conversation I had with him was, that he mentioned to me once, during our discussion, of the power of the president to organize the senate, and, on my coming to him, he stated to me that I was right in my position; that when he took the chair as lieutenant governor, in 1849, he did

not do so until the Senate was organized by a State officer. I know of no caucus in which he was present or participated.

Question, by same. Did not the republican senators, on the 2d day of February, 1857, in the absence of every democratic senator, twentythree in number, take up and adopt the following resolution, found on page 222 of the Senate Journal, to wit: "Resolved, That Le Roy Woods, by accepting the office of moral instructor for the State prison, discharging its duties and receiving the emoluments thereof, since his election as such senator from the county of Clark, has vacated his office as senator, and he is not entitled to his seat in the Senate." And did not said republican senators from that time up to the final adjournment of the Senate, refuse to recognize said Woods as a senator, or suffer him to take any part whatsoever as a senator?

Answer. On Monday, the 2d day of February, 1857, at two o'clock p. m., the senate took up the resolution above indicated, and passed it, as shown by the records of the senate. I do not know, and do not think that any democratic senator was present. We did refuse to recognize Mr. Woods as senator for the remainder of the session.

Question, by same. Was there a quorum present when said resolution was passed?

Answer. There was no call of the senate, and the ayes and noes were not called. I think there was not a quorum of thirty-four members present.

Question, by same. What is the constitutional number of votes required in the senate to expel a senator?

Answer. Two-thirds of the senators elected, I believe, which would be at least thirty-four members. That is the requisition of the constitution for the expulsion of members.

The further taking of depositions postponed until Monday next, at 2 o'clock p. m., at the senate chamber.

Monday, the 10th day of May, 1858, met, by consent of the contestors, Messrs. Murray and Bobbs, and of William Henderson, as friend of Messrs. Bright and Fitch, at the supreme court-room, in the capitol building, in Indianapolis. The said witness, Charles D. Murray, appeared, and his examination continued.

I, John D. Defrees, as attorney of contestors, propounded to said Murray the following questions:

Question. State, if you please, the number of senators sworn in on the 8th day of January, 1857, on the organization of the Indiana senate; by whom they were sworn, and the number of senators holding over from the former session?

Answer. There were twenty-five senators sworn on the first day of the session. The republican senators were in the forenoon of that day sworn in by Judge Gookins, and the democrats by Lieutenant Governor Willard. In the afternoon of that day, by agreement, all the newly elected senators, both democrats and republicans, except Dr. Cooper, of Rush, were sworn in by Judge Gookins, by order of Governor Willard. These, with the senators holding over, made forty