of a delegate to Congress to fill a vacancy. Nowhere is authority given to the governor to fix a day by proclamation for the choice of a delegate to Congress to fill a vacancy. The proclamation actually issued by the governor for the election of last October had no legal validity whatever, or even color of legal validity. No citizen of Kansas was bound to pay any attention to it, or is to be concluded or prejudiced as to any right whatever by refusing to take notice of this proclamation.

The authority of the governor of Kansas to issue his proclamation for the election in October last was denied and repudiated by the great majority of the people of Kansas, and this of itself, and without reference to other considerations, was a sufficient reason for their refusal to participate in the illegal and pretended election held under it.

The sitting delegate, having no claim to his seat on the ground of having been elected in pursuance of law, might still be allowed, as a matter of indulgence and discretion, to retain his seat, if it sufficiently appeared that his election was in fact concurred in by a majority of those who are, or ought to be, the legal voters of Kansas. No such thing, however, appears; but, on the contrary, all the circumstances and evidence in the case point irresistibly to an opposite conclusion.

The election at which the sitting delegate claims to have been chosen was conducted by the officers, and under the regulations prescribed in "An act to regulate elections," passed by the (so-called) territorial legislature in 1855, and it becomes necessary to examine some of its provisions.

By the fifth section of this act the election judges derive their appointment, not from the governor or from the people, but from boards of county commissioners, who were themselves appointed, not by the governor or people, but by the usurping and pretended legislative body elected on the 30th of March, 1855. It is safe to infer the character of these election judges, and the purposes for which they were selected, from the sources to which they owe their appoint

ment.

By the fourth section of this act the boards of county commissioners are au thorized to establish new election precincts down to the day of election, and even on the day of election itself. By the ninth section of this act the election judges are authorized to adjourn the elections to the next following day. These two provisions, it is manifest, afford great and tempting opportunities for fraud. The eleventh section of this act, prescribing the qualifications of voters, requires no term of orevious residence in the Territory, not even one single hour. In connexion with the twentieth section of the act, it authorizes any person to vote, at the pleasure of the election judges, who will swear that he is an inhabitant. This last section authorizes the election judges, at their discretion, to receive evidence as to the qualifications of voters, or to examine the voter "touching his right to vote; and if so examined, no evidence to contradict shall be received." The privilege of swearing in their votes is not accorded to all persons offering their votes. This would be impartial, whatever might be thought of its justice or policy. The privilege is, in fact, granted or withheld, at the unrestrained discretion of the election judges.

The eleventh section of this act is as sweeping in its exclusions as it is in its admissions. While it gives the right of suffrage in Kansas to every citizen of Missouri who is weak, ignorant, or reckless enough to swear that he is an "inhabitant" of Kansas, it excludes from the right of suffrage every person who will not, upon being thereto required, take an oath, or affirmation, to "sustain the provisions" of the acts of Congress of February 12, 1793, and of September 18, 1850, providing for the rendition of fugitive slaves; and also of the act of Congress of May 30, 1854, to organize the Territories of Nebraska and Kansas. This is a test oath of the most odious character, and operates to exclude from the exercise of the right of suffrage large numbers of the people of Kansas. All

test oaths are odious, and opposed to the principles and traditions of American liberty. They have been the ready resorts of tyranny in all ages and countries. They oppose no barriers to the unscrupulous, while they repel men of tender consciences. This is believed to be the first instance in this country in which a successful political party has attempted to exclude its opponents from the right of suffrage, by a party shibboleth, in the form of a test oath. It deserves the severest condemnation at the hands of all who cherish the forms and substance of free institutions. No countenance should be given to elections tainted and polluted by it.

Looking merely to the provisions of this Kansas "act to regulate elections," and without the aid of any testimony as to its practical working, the conclusion would be irristible that no faith and credit are due to proceedings under it, but that everything should be presumed against them.

There is, however, abundant testimony as to the practical working of the (socalled) election laws of Kansas.

Among the conclusions arrived at by the special committee appointed by this house, during its first session, to investigate the affairs of Kansas, and supported by an overwhelming array of evidence, were the two following:

That each election in the Territory, held under the organic or alleged territorial laws, has been carried by organized invasion from the State of Missouri, by which the people of the Territory have been prevented from exercising the rights secured to them by the organic

law.

That in the present condition of the Territory, a fair election cannot be held without a new census; a stringent and well-guarded election law; the selection of impartial judges, and the presence of United States troops at every place of election.

That large numbers of persons in Kansas are, in fact, restrained from the exercise of the right of suffrage, by the test oaths imposed by the pretended election law in that Territory, is proved by the remonstrances of twelve hundred and sixty-six legal voters of Kansas against the right of the sitting delegate to hold his seat. These remonstrances declare :

The legislature so elected made certain enactments not only at variance with the organic act, but with the Constitution of the United States, and among them an election law which effectually debars us by the interposition of test oaths from seeking a remedy through the ballotbox.

The contestant, A. H. Reeder, in his memorial declares :

In the month of October, 1855, the said J. W. Whitfield and your petitioner were candidates for the office of territorial delegate to the present Congress at two separate elections, when your petitioner, as appears from the report of a special committee of your honorable body, received more than double the number of legal votes cast for the said J. W. Whitfield. That upon a full investigation of all the facts relative to said elections, the House rejected the said J. W. Whitfield, but refused to admit your petitioner. The reasons for this action, as appears plainly from the debates of the House, were that the said J. W. Whitfield was in a minority of the popular vote, and had been elected under a void election law, and that your petitioner, although having a large majority of the popular vote, had been elected without any law declaring the time and manner of election.

Without any new legislation, and under the same state of things, the said J. W. Whitfield again became a candidate for a single session of the same Congress at an election held in October, 1856, entirely without the authority of law, in which a large majority of the voters of the Territory refused, for that and other reasons, to participate. They respected the deci sion of your honorable body, so recently made, refusing to recognize a voluntary election, and therefore abstained from a proceeding which could only result in a second presentation of an adjudicated question, and involving a disrespect of the authority and action of the House. The persons who did participate in this irregular, unauthorized, and illegal election, were a small number of the voters of the Territory, considerably less than those who voted at the voluntary election of October, 1855, and a large number of non-residents of the Territory, and persons not entitled to vote. Upon the result of this election only the said J. W. Whitfield has been admitted to, and now occupies, his seat in the House.

This election, as already stated, was purely voluntary on the part of those who participated in it, and without the semblance or color of law, congressional or territorial, valid or invalid, to authorize or justify it.

Upon the whole case, your committee are of opinion that any election held under the (so-called) election law of Kansas must necessarily be fraudulent,

and is entitled to no credit anywhere; that the act of the governor of Kansas in ordering a special election of a delegate to Congress in the month of October last was done without any lawful authority, or color or pretence of lawful authority; and that there is no evidence in the case showing, or tending to show, that the sitting delegate was, or is, the choice of a majority of the bona fide voters of the Territory of Kansas, but that all the probabilities are the other way.

In reference to the request of A. H. Reeder to be admitted to a seat as a delegate from Kansas, it is a request addressed to the discretion of the House, and your committee are not prepared, upon the evidence submitted, to recommend that it be granted.

Your committee recommend the adoption by the House of the following resolution:

Resolved, That John W. Whitfield is not entitled to a seat in this house as a delegate from the Territory of Kansas.

Minority report in the contested election between A. H. Reeder and John W. Whitfield.

In the matter of the memorial of A. H. Reeder, contesting the right of John W. Whitfield to a seat in this house as a delegate from Kansas Territory, the undersigned, members of the Committee of Elections, beg leave to submit the following minority report:

The undersigned, after the most careful examination of the whole subject in all its bearings which they have been capable of giving to it, find themselves wholly unprepared to concur with the majority of the committee in the conclusions at which they have arrived in their report; but, on the contrary, shall maintain that they are unauthorized by the facts and circumstances in the case and the law arising thereupon.

It is true, as stated by the majority of the committee, that "the sitting delegate from the Territory of Kansas bases his claim to his seat upon an election held in October, 1856, in pursuance of a proclamation, fixing the day of the election, issued by the governor of the Territory of Kansas, and which said election was conducted according" to the election laws enacted by the legislature of Kansas Territory in 1855, "and which derived its existence from an election held in that Territory on the 30th of March, 1855." But the undersigned utterly deny that it "appears from the report of the special committee, appointed by this house during the first session to investigate the affairs of Kansas, that the territorial legislature, claiming to have been chosen at the election of March 30, 1855, was an illegally constituted body, and had no power to pass valid enactments," and that, therefore, their enactments are null and void. On the contrary thereof, they affirm, that upon a strict examination of the testimony taken before said special committee it will appear most manifestly, to any unprejudiced mind, that the election of March, 1855, for members of the legislature, was not carried either by "fraud," "force," "violence," "threats," or "perjury," as alleged by the majority of the committee, but that a majority of the legislature was duly elected by a majority of the bona fide residents of the Territory, as certified to by A. H. Reeder, then governor of the Territory of Kansas, and now the contestant of John W. Whitfield for a seat in this house. Meanwhile, however, the undersigned would not be understood as denying that there may have occurred, in some instances, in connexion with the election of the 30th of March, 1855. "fraud, violence, and perjury combined," but the undersigned utterly deny that the testimony taken by the Kansas Investigating Committee even tends to show that "fraud, violence, and perjury" were combined and systematized upon the most gigantic scale, and for the most corrupt objects,

as charged by the majority of the committee. They can but regard the assertion as a gratuitous assumption and as having no legitimate basis upon which to rest-none whatever.

Admitting, however, for the sake of the argument, that "fraud, violence, and perjury" did, in some few instances, occur in the Territory of Kansas in connexion with the election of the 30th of March, 1855, still, the undersigned maintain that a very large majority of the legislature were elected by a majority of the actual bona fide settlers or residents of the Territory; and that, therefore, the laws enacted by that body are valid and binding upon all until annulled and held for naught by the judicial tribunals of the country.

But, say the majority of the committee, "if, however, it can be assumed that the legislature of the Territory of Kansas, elected on the 30th of March, 1855, was a lawfully constituted body, another and equally fatal objection remains to the claim of the sitting delegate."

Now, what is that "fatal objection?" As appears in their report it is this: That neither the act of Congress organizing the Territory of Kansas, nor yet the election laws enacted by the Kansas legislature, authorized the governor of the Territory to issue his proclamation for an election of a delegate to Congress in the month of October, 1856.

In answer to this objection, whilst the undersigned admit that neither the organic act nor the laws enacted by the territorial legislature contain any such authoritative provisions in express terms, still they cannot readily concur with the majority of the committee in the conclusion that, in the absence of such provisions, either in the organic act or the laws passed by the territorial legislature, it necessarily follows that the proclamation of the governor, ordering the election held in October, 1856, was unauthorized and void, and that, consequently, the election of the sitting delegate was null and void from the beginning; but, on the contrary thereof, the undersigned would suggest, for the consideration of the House, that, inasmuch as the organic act secures to the people of Kansas Territory the right of electing a delegate to represent them in Congress, they should not be held to have lost this high privilege merely because the territorial legislature omitted to pass an act prescribing "the times, places, and manner of holding the elections," which they were authorized to do by the following provision in relation to the election of delegates to Congress from the Territory of Kansas, as contained in the thirty-second section of the act of Congress of 1854, organizing the Territories of Kansas and Nebraska, to wit: "The first election shall be held at such time and places and be conducted in such manner as the governor shall appoint and direct; and at all subsequent elections the times, places, and manner of holding the election shall be prescribed by law."

In this connexion the undersigned deem it proper to state that the first election for a delegate to Congress from Kansas Territory was held in the month of October, 1854, in accordance with the provisions of the law just quoted; the second in the month of October, 1855, in accordance with the provisions of the laws enacted by the Kansas legislature. At which second election John W. Whitfield, the sitting delegate, was chosen for two years, and, in pursuance thereof, took his seat in this house at the opening of the last session of Congress as the delegate from the Territory of Kansas; but his right to his seat was contested by A. H. Reeder, the contestant in this case, and he, Whitfield, was, during the session, ousted from his seat by order of the House-thus creating a vacancy in that office.

To fill this vacancy the governor of said Territory, very properly, as the undersigned believe, issued his proclamation, as before stated, ordering an election to be held on the first Monday of October, 1856, which was done accordingly. At that election there was but one candidate, the sitting delegate, and he received 4,300 votes, which was unquestionably a large majority of the legal

voters of the Territory. Besides, at this election, there is no evidence even tending to show that any illegal votes were cast for the sitting delegate; nor is such a thing even pretended by the majority of the committee. Indeed, it could not be so pretended with any reasonable degree of propriety.

In pursuance of this election the governor of the Territory of Kansas gave to the sitting delegate a certificate, bearing the seal of the Territory, certifying that John W. Whitfield "was duly elected a delegate to the second session of the thirty-fourth Congress of the United States from the Territory of Kansas at an election held on the first Monday in October, 1856."

Upon the foregoing state of facts the undersigned insist that the governor of the Territory not only had the authority, but that it was his bounden duty to the people of his Territory, and, indeed, to the entire country, to have issued his proclamation as he did for an election of a delegate from Kansas Territory to the present session of Congress. They maintain that his authority over the subject was not necessarily exhausted by the first election of a delegate to Congress; but only after the legislature, local to the said Territory, shall have passed a law prescribing "the times, places, and manner of holding elections" for delegates to Congress. That until they shall have done so, to carry out faithfully the spirit and meaning of the act organizing the Territory of Kansas, and to prevent a failure of representation in Congress from the Territory, it has been, from the very necessity of the case, and will continue to be, the duty of the governor of the said Territory to keep a delegate in Congress from the Territory of which he is governor, according to the true meaning and intent of the organic act.

The undersigned, in this regard, and surely in no spirit of disrespect, must be permitted to observe that they cannot regard the positions and arguments of the majority of the committee as eminently suited to this house in a question involving the right of a sovereign people to be represented on this floor by their chosen agent or delegate. For to construe the organic act as the majority of the committee insist on would be to say that the people of Kansas Territory could not, under any circumstances, have a delegate in Congress, should the territorial legislature, from inadvertence or otherwise, after the first election, fail to pass an act prescribing "the times, places, and manner of holding the elections." Surely those who voted for the organic act never thought of any such result. To adopt the construction of the undersigned would be to uphold the government of Kansas Territory; but to accept as sound that of the majority of the committee would be to disorganize and destroy the territorial government, which would lead to disastrous results. The House, it is to be hoped, will not do the latter.

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The construction given to the organic act by the undersigned does not derogate from the rights of any; but, in its practical operations, secures to the ple of the Territory of Kansas the great right of a delegate to represent them in Congress. But, for the sake of the argument, let it be admitted that the governor of the Territory of Kansas had no authority, either under the organic act or the laws enacted by the legislature of said Territory, to issue his procla mation for the election which was held on the first Monday of October, 1856, for a delegate to Congress from the said Territory, still the undersigned maintain that the action of the governor is fully justified by an act of Congress entitled "An act further to regulate the Territories of the United States, and their electing delegates to Congress," approved March 3, 1817. In the first section of this enactment it is provided as follows:

That in every Territory of the United States in which a temporary government has been, or hereafter shall be, established, and which, by virtue of the ordinance of Congress of the thirteenth of July, one thousand seven hundred and eighty-seven, or of any subsequent act of Congress passed or to be passed, now hath, or hereafter shall have, the right to send a delegate to Congress, such delegate shall be elected every second year, for the same term of