Wealth against commonwealth

by Henry Demarest Lloyd

Testimony was taken by the Legislature that an ex-Lieutenant-Governor of Ohio, afterwards Consul-General of the United States at Frankfort, Germany, had been in the room of Payne's manager, had seen that he was using money to procure the election, and had so told Mr. Payne before the election, and that Mr. Payne's reply—"You don't suppose I would endorse anything of that kind, do you?"—showed that he had understood the use of money referred to to be an improper use, thereby fastening upon Mr. Payne, if true, the knowledge that his agents were corrupting the Legislature.

During this deluge of charges Mr. Payne made no denial.

After the investigation had been ordered by the State Legislature, Senator Payne made an offer to the committee to submit all his private papers and books of accounts to their examination—an empty offer, because it was not charged that the corruption had been done by him, but for him by others. These latter made no such offer, but fled from the jurisdiction of the Legislature. When the representatives of the people of Ohio appeared before the committee of the United States Senate on elections, with the offer to prove under oath the foregoing charges, he remained voiceless. He did not rise in his place in the Senate to deny these accusations, as every other senator since the Senate began had done. He did not go before the committee, nor send before them any witness, or make any explanation. When the Senate committee decided to recommend the Senate not to investigate, and the representatives of Ohio begged the committee to reconsider, Senator Sherman declared that he heartily agreed with every word of the appeal, but Senator Payne still kept silent. The records of Congress show that his sole utterance or appearance in this matter in Congress was to make the motion that the papers forwarded by the Ohio Legislature should be sent, as was the routine, to the Committee on Elections. In doing this he did more than abstain from the utterance of a word which could be in any way construed as a demand for investigation. He delivered what was, in effect, an appeal to his fellow-senators not to investigate. He attacked the Legislature for sending the report of its investigation to Congress, characterizing "this proceeding—the transmission of the testimony here—as an attempt to circulate and give currency to baseless gossip and scandal, after everything substantial in the way of a charge had been discredited and disproved." In conclusion he left the matter to the committee "for such disposition of it as they may find to be in accordance with dignity and justice."

The Legislature which made the investigation selected as the reason for ordering it the fact that a well-known citizen had just repeated in an open letter in the public prints the charges of bribery which had been made already hundreds of times. When this citizen was called upon to testify before the Legislature he stated that, as his information was derived from others, he had no personal proof to offer of his own knowledge that bribery had been committed. Referring to this, Mr. Payne said to his colleagues of the Senate:

"Thus fell all that the investigation was originally based upon."[568]

This was not true. The witness furnished the committee with the names of the men on whose authority he had spoken, and through whom evidence based on personal knowledge could be procured as to the truth of the charges.[569] Therefore the statement, "Thus fell all that the investigation was originally based upon," so far as it was believed by the senators, deceived them. The State Legislature could not compel the witnesses to testify. Only the United States Senate could do this, and it was deterred from doing so by this concealment of the fact that the investigation, instead of falling because of no basis, had struck firmer ground. The proffer of evidence was of such a character that, as has been well said, none of the lawyers of the Senate committee who voted against recommending investigation "would have failed to recommend thorough investigation of such an incident if it had been relevant to an alleged title set up against a private client."[570] But the Senate Committee on Privileges and Elections—Senators Pugh, Saulsbury, Vance, and Eustis voting against Hoar and Frye—recommended the Senate not to investigate, and the Senate adopted this report.

No one had expected this. The unbroken precedents of the Senate had made it a matter of course in public expectation that the investigation would be made. A convention of Ohio editors, sending a memorial for a reconsideration, said: "No instance has yet arisen in the history of the Senate where specific and well-supported charges of bribery in a senatorial election, preferred by the Legislature of a State, have not been promptly investigated by the Senate. In fact, so jealous has the Senate been of its own integrity and honor that it has heretofore promptly ordered investigations upon the memorials of citizens, and in other cases upon the memorial of individual members of a Legislature charging fraud in senatorial elections." In so doing the Senate, to adopt the language used by the chairman of the Committee on Elections, Senator Hoar, declared that "it is indifferent to the question whether its seats are to be in the future the subject of bargain and sale, or may be presented by a few millionaires as a compliment to a friend."[571] "This matter never can be quieted," said Senator Sherman in the debate in the Senate. "There are six or seven men who are known—I could name them—who, if they were brought before this Committee on Privileges and Elections, would settle this matter forever one way or the other in my judgment."

The Senate decided that such a charge, accompanied by such offers of proof, did not deserve its attention. The trial of "even a criminal accusation," said the minority of the committee, "requires only the oath of the accuser who is justified if he have probable cause." The minority, Senators Hoar and Frye, further said: "It will not be questioned that in every one of these cases there is abundant probable cause which would justify a complaint, and compel a grand-jury or magistrate to issue process and make an investigation. Is the Senate to deny to the people of a great State, speaking through their Legislature and their representative citizens, the only opportunity for a hearing of this momentous case which can exist under the Constitution? The question now is not whether the case is proved—it is only whether it shall be inquired into. That has never yet been done. It cannot be done until the Senate issues its process. No unwilling witness has ever yet been compelled to testify; no process has gone out which should cross State lines. The Senate is now to determine, as the law of the present case, and as the precedent for all future cases, as to the great crime of bribery—a crime which poisons the waters of republican liberty in the fountain—that the circumstances which here appear are not enough to demand its attention. It will hardly be doubted that cases of purchase of seats in the Senate will multiply rapidly under the decision proposed by the majority of the committee."[572]